Opposition Brief — Turbomeca, S. A. v. Barnett

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No. 97-2072 JUL 1 6 1998

OFFICE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the United States

October Term, 1997

TURBOMECA, S.A. and TURBOMECA

ENGINE CORPORATION,

Petitioners,

KYONG JU BARNETT, Individually, and as Next Friend

of JESSE MORGAN BARNETT, and MIA KYONG

BARNETT, Minor Children; WANDA and JAMES S.

BARNETT, SR; and STATE OF MISSOURI,

Respondents.

On Petition For Writ Of Certiorari To The

Missouri Court Of Appeals, Western District

e —

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Gary C. Ross*

ANITA Porte Ross

Ross & Ross tic

One Kansas City Place

1200 Main Street, Suite 3900

Kansas City, Missouri 64105

(816) 474-8080

Attorneys for Respondents

Kyong Ju Barnett, Jesse

Morgan Barnett and Mia

Kyong Barnett

*Counsel of Record

July 23, 1998

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

DOES THIS COURT HAVE JURISDICTION TO

ENTERTAIN A WRIT OF CERTIORARI WHERE THE

UNDERLYING CASE OR CONTROVERSY HAS

BEEN EXTINGUISHED BY PETITIONERS’ VOLUN-

TARY PAYMENT OF THE JUDGMENT IN FULL IN

EXCHANGE FOR A COMPLETE DISCHARGE AND

RELEASE OF ALL CLAIMS?

IS CERTIORARI WARRANTED TO REVIEW A STATE

COURT DECISION WHICH CORRECTLY APPLIED

THE SETTLED STANDARDS OF BMW V. GORE TO

THE FACTS OF THIS CASE AND WHICH FURTHER

UNDERTOOK AN INDEPENDENT REVIEW OF THE

REASONABLENESS OF THE PUNITIVE DAMAGE

AWARD ACCORDING TO MORE STRINGENT

STATE LAW STANDARDS?

IS CERTIORARI WARRANTED TO DECIDE

WHETHER THE EXCESSIVE FINES CLAUSE

APPLIES TO PUNITIVE DAMAGES IN CIVIL CASES

WHEN NO FEDERAL OR STATE COURT HAS EVER

CONSIDERED THE ISSUE AND WHEN EXCESSIVE

FINES ANALYSIS WOULD ONLY DUPLICATE THE

DUE PROCESS ANALYSIS THOROUGHLY PER-

FORMED BY THE COURT BELOW?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............-------00+: i

TABLE OF CONTENTS... ...-cccsccsccsccccscseves ii

TABLE OF AUTHORITIES ..........cnccceccccceces iv

STATEMENT OF THE CASE.............2-ceeceees: 1

SUMMARY OF REASONS FOR DENYING THE

WORT oc bc wencncsdsczesessivensenncsdeaneetoerees 3

REASONS FOR DENYING THE WRIT..........-.-. 4

I. THIS COURT LACKS JURISDICTION TO

ENTERTAIN THE PETITION IN THAT PETI-

TIONERS VOLUNTARILY PAID THE FINAL

JUDGMENT IN FULL WITHOUT ANY RESER-

VATION OF RIGHTS AND IN EXCHANGE

FOR RESPONDENTS’ COMPLETE RELEASE

AND DISCHARGE OF ALL CLAIMS WHICH

EXTINGUISHED THE UNDERLYING CAUSE

OF . MOTE 2 vc cnt ccnsvsevéssegedebecunsaseses 4

Il. ONCE PETITIONERS’ MISSTATEMENTS OF

MISSOURI LAW AND OF FACT ARE COR-

RECTED, THIS CASE PROVIDES NO REASON

TO ELABORATE FURTHER DUE PROCESS

CLAUSE LIMITATIONS ON PUNITIVE DAM-

PASE REGIS 6 ink tcctcdiatacacspebsedancscnees 11

A. The Missouri Appellate Court Properly Fol-

lowed The Due Process Guidelines Set

Forth In BMW v. Gore As Well As The More

Stringent Missouri Law Standards ........ 13

B. Missouri Law Has Provided Clear Notice

For Decades That Punitive Damages Are

Available In Wrongful Death Cases........ 15

ai a as

ill

TABLE OF CONTENTS - Continued

Page

C. The Punitive Liability Imposed Upon Peti-

tioners Was Related Solely To The Deaths

That Occurred In Missouri................ 19

D. The Missouri Appellate Court Properly

Considered Evidence Of Financial Condi-

tion On The Amount Of Damages Needed

To Punish And Deter Petitioners’ Unlawful

Conduct And Petitioners’ Argument About

Net Worth Is Incomplete As Well As Mis-

NN i pwns Cs va wee es oo wore Sa x ei cs 22

E. The Missouri Appellate Court Thoroughly

Considered The Cumulative Impact Of A

Separate Punitive Award In A Companion

Case Arising From The Same Incident .... 26

Ill. THERE IS NO REASON TO CONSIDER A

NOVEL APPLICATION OF THE EXCESSIVE

FINES CLAUSE TO PUNITIVE DAMAGES IN

CIVIL CASES WHEN NO OTHER FEDERAL

OR STATE COURT HAS CONSIDERED THE

ISSUE AND WHEN EXCESSIVE FINES ANAL-

YSIS WOULD ONLY DUPLICATE THE DUE

PROCESS ANALYSIS THOROUGHLY PER-

FORMED BY THE COURT BELOW ........... 27

SPONGE 5s wks idciccccs. ST eee ee Pe eet 30

APPENDICES

APPENDIX A

Acknowledgments of Satisfaction of Judgment and

Waiver of Attorneys’ Liens, April 28, 1998 ..... App. 1

APPENDIX B

Transcript of Proceedings On Entry of Final

pena, wets om, 2908... App. 11

TABLE OF AUTHORITIES

Page

Cases

BMW of North America v. Gore, 116 S.Ct. 1589

Ey. | PEP ee eee ere yr Te TSE NTT POET Tee Te ees passim

Bennett v. Owens-Corning Fiberglas Corp., 896

S.W.2d 464 (Mo. banc. 1995).............-. 17, 18, 19

Browning-Ferris Industries, Inc. v. Kelco Disposal,

Inc., 492 US. F557 (19O9) on ow ce ce ci cewsecesens 27, 28

Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183

{| arene ep orr tories ire saeere re ee eres Pe ar ee 7

Elam v. Alcolac, Inc., 765 S.W.2d 42 (Mo. App. 1988) .... 26

Embry v. Palmer, 107 U.S. 3 (1883).......---++++--+5+- 9

Equal Employment Opportunity Comm'n v. HBE

Corp., 135 F.3d 543 (8th Cir. 1998) .........-..-5-. 25

Farmer v. Arnold, 371 S.W.2d 265 (Mo. banc. 1963)..... 5

Goode v. Central Coal & Coke Co., 151 S.W. 508 (Mo.

Mapm. T9IZ) cas cnvevcses cdegsetsevencencwnesnees 16

Gustin v. F.D.1.C., 835 F. Supp. 503 (W.D. Mo. 1993) ..... 6

Letz v. Turbomeca, S.A., pending in Missouri

Supreme Court, No. 80558..........-...+++- 9, 12, 14

Leonard v. Pioneer Finance Co., 568 S.W.2d 937 (Mo.

App. 1978) ............s cece eee e eect een eeeeee 8

Little v. Bowers, 134 U.S. 547 (1690) «2... 2 ccc ccences 8

Lugena v. Hanna, 420 S.W.2d 335 (Mo. banc. 1967) ..... 5

Missouri Highway and Transportation Comm. v.

Myers, 785 S.W.2d 70 (Mo. banc. 1990).......-----. 9

Nichols v. Winfrey, 79 Mo. 544 (1883) .......--.---+-- 16

TABLE OF AUTHORITIES —- Continued

Page

Noah v. German Insurance Company, 78 Mo. App.

Bee Soho sh bibdate 8

Pacific Mutual Life Insurance. Co. v. Haslip, 499 U.S.

SS 6a Seder ee a in hia ae 24

Parsons v. Missouri Pac. Ry. Co., 6 S.W. 464 (Mo.

i REE Pere eyo POT NE eh pene tbe a ae RE ies 16

Rosenblum v. Jacks Or Better of America West, Inc,

745 S.W.2d 754 (Mo. ey orgie ees 7

TXO Production Corp. v. Alliance Resources Corp.,

Bee Me Ge Re ikvesehese we es 13, 20, 29

Thorp v. Bonnifield, 177 U.S. 15 (1900) ................ 7

LInited States v. Bajakajian, 118 S.Ct. 2028 (1998) ..... 29

United States ex rel. H & § Indus., Inc. v. F.D. Rich

Ca, Sas Bae Fer Ge Ge Pe So ce 8

Winfield Inns v. Edward Leroux Group, Inc., 896 F.2d

ee ge ae. aL ee en Roe rere y

Youakim v. Miller, 425 U.S. 231 (1976) ............... 21

CONSTITUTIONAL PROVISIONS

Excessive Fines Clause, United States Constitu-

com, Amenament Vil ....<......... ... 4, 27, 28, 29

Due Process Clause, United States Constitution,

PINS CRED oi 5 o Gib ac kc ee 11, 28, 29

STATUTES

28 U.S.C. 1257(a) (se edad abd 6 An wb spe P LAL ER

an. ee, Tek: Ch, St: BO Co 16

PE SS Oe CER Ree ESS

TABLE OF AUTHORITIES - Continued

Mo. Rev. Stat.

Mm Mm

Page

SOR DES CRISE),, vin dn cs kus bie eear 12, 18

7 ke a ee ee ee arden eas 9, 26

ER vivvctsckv heh used wowaraneems 5

537.090 (1994)......: OR ee eee ee 16

BOT Bae CROPS Fi kv cas dadiecadaceien 28

STATEMENT OF THE CASE

On May 27, 1993, James Barnett, Jr. was the pilot in

command of Life Flight 2, an air ambulance helicopter

service operated jointly by St. Luke’s and St. Joseph Hos-

pitals in Kansas City, Missouri (Tr. 844-46). He and a crew

of two nurses were responding to a call for a hospital

transfer in Bethany, Missouri. Upon arrival at the hospi-

tal, the patient was loaded onto the helicopter and the

helicopter departed for St. Luke’s Hospital in Kansas City

(Tr. 850-51). Mr. Barnett did not know that his life-saving

mission would result in two deaths, his own and that of

the patient. He did not know that his helicopter con-

tained a defective part which caused the fatal crash.

Petitioner Turbomeca, S.A.! is a helicopter engine

manufacturer based in Tarnos, France. Petitioner Turbo-

meca Engine Corporation is its corporate affiliate that

exclusively distributes Turbomeca engines in the United

States. Since 1985, petitioners were on notice that the

engine part that caused the death of Mr. Barnett and the

patient in his helicopter was dangerous and defective.

During the 8 years preceding the crash, petitioners delib-

erately withheld from aviation authorities and users of

their helicopter engine warnings as to the danger they

knew existed and offers to replace the defective parts.

The evidence clearly established that petitioners failed to

warn or replace parts because they knew that replace-

ment would cost them in excess of $48 million and they

' Petitioners have incorrectly named both corporate

defendants. As set out in the opinion by the Missouri Court of

Appeals the legal name for Turbomeca, S.A. (which is the A/K/

A) is La Société Anonyme Turbomeca Francé. Further, the

distributor is not Turbomeca Engine Company, but Turbomeca

Engine Corporation (Pet. A-1). Except where separately

identified, both petitioners will be referred to hereinafter as

Turbomeca.

2 ~

were willing to risk public health and safety to save that

expense.

The Missouri Court of Appeals, in a unanimous opin-

ion of its 11 members sitting en banc,? accurately summa-

rized the evidence offered at trial as follows:

The reprehensibility of Turbomeca’s conduct is

unparalleled, considering that Turbomeca knew

the TU-76 was defective and had discussed inci-

dents resulting from the TU-76’s failure inter-

nally, but did not find it necessary to either:

inform the helicopter owners of the in-flight

failures, notify the FAA of such incidents, or

conduct a recall of the defective TU-76 part.

From the evidence it can easily be inferred that

Turbomeca’s decision-making was motivated

solely by economics.

Pet. App. A-41 (emphasis added). The court thoroughly

set forth the pertinent facts in its opinion at Pet. App.

A-1-15 and A-30-50.

The deceased’s wife of 15 years, his 14- and 12-year-

old children, and his parents brought this action against

Turbomeca. Following a four-week trial, the jury entered

a verdict of $175 miilion in punitive damages in addition

to compensatory damages. The trial judge ordered a

remittitur of all but $25 million of the compensatory

damages and of one-half or $87.5 million of the punitive

damages. The Missouri Court of Appeals further remitted

compensatory damages to $3.5 million and punitive dam-

ages to $26.5 million. Petitioners’ application for review

to the Missouri Supreme Court was denied.

2 Judges on the Missouri Court of Appeals are selected by

means of a non-partisan merit commission system known as the

“Missouri Plan.”

SUMMARY OF REASONS FOR DENYING THE WRIT

The petition suffers from a fatal jurisdictional defect.

In exchange for payment of the final judgment in this

case, and before filing their petition in this Court, peti-

tioners demanded and received an unconditional release

and satisfaction of judgment from respondents. Under

Missouri law, this concludes the litigation between the

parties and precludes any further judicial action. Peti-

tioners have recognized the finality of this release and

satisfaction of judgment by claiming the punitive sums

paid in this case as a credit in a companion case now on

appeal to the Supreme Court of Missouri. Thus, there is

no live case or controversy to support this Court’s juris-

diction under 28 U.S.C. 1257(a).

Although the jurisdictional issue is technically pri-

mary, the virtual certainty of a jurisdictional defect in this

case is just one more reason why this Court should deny

a petition that fails on its own merits. The court below

upheld a remitted punitive damage award in this case

after thoroughly applying the due process standards this

Court recently announced in BMW of North America v.

Gore, 116 S.Ct. 1589 (1996), as well as conducting an

independent review under the more stringent Missouri

law standards. Petitioners allege no split among lower

courts concerning the BMW v. Gore standards, nor indeed

any erroneous interpretation of those standards by the

court below.

Petitioners’ claim that this case should still provide

the occasion for further elaboration of punitive damages

rests on false or misleading statements of law and fact.

Petitioners had full advance notice that their persistent

intentional and reckless conduct, resulting in the death of

two people, could subject them to punitive damages

under Missouri law. The punitive award in this case

related solely to that conduct, not to conduct in other

jurisdictions. In reviewing that award, the court below

fully and correctly considered petitioners’ financial con-

dition and the cumulative effect of an award in a compan-

ion case.

There is no reason for this Court to consider a novel

extension of the Excessive Fines Clause to this case when

no lower court has considered this issue and when an

Excessive Fines Clause analysis would merely duplicate

the due process analysis thoroughly performed by the

court below.

REASONS FOR DENYING THE WRIT

I. THIS COURT LACKS JURISDICTION TO ENTER-

TAIN THE PETITION IN THAT PETITIONERS

VOLUNTARILY PAID THE FINAL JUDGMENT IN

FULL WITHOUT ANY RESERVATION OF RIGHTS

AND IN EXCHANGE FOR RESPONDENTS’ COM-

PLETE RELEASE AND DISCHARGE OF ALL

CLAIMS WHICH EXTINGUISHED THE UNDERLY-

ING CAUSE OF ACTION.

This Court lacks jurisdiction to entertain the petition

for writ of certiorari because there is no longer any case

or controversy between the parties. This is so because

petitioners voluntarily paid the entire amount of the

punitive judgment in this case without reservation of any

rights or remedies and demanded and received a com-

plete release from respondents. The “Acknowledgments

of Satisfaction of Judgment and Waivers of Attorneys’

Liens” expressly provide that “[DJefendants’ tender of

payment shall forever release and discharge defendants from

any further obligations in this case.” Resp. App. 1, 6

(emphasis added). These are general releases which con-

stitute a full accord and satisfaction under Missouri law.

The general release of a defendant without any reser-

vation of rights concludes the litigation for all purposes

and precludes further judicial action. Lugena v. Hanna,

420 S.W.2d 335, 341 (Mo. banc. 1967); Farmer v. Arnold, 371

S.W.2d 265, 269-70 (Mo. banc. 1963). In the words of the

Missouri Supreme Court:

In the absence of words in the operative part of

a general release which indicate an intention to

limit or restrict its effect, it must be concluded that

the instrument was contemplated and intended to be

a complete settlement of all matters between the

parties to the release.

Lugena v. Hanna, 420 S.W.2d at 341 (emphasis added).

This release thoroughly extinguishes any jurisdiction in

this Court. “if

The release documents were drafted by petitioners

and make express reference to Mo. Rev. Stat. § 511.570.

That statute provides that “[w]hen any judgment or

decree is satisfied otherwise than by execution,” the prevail-

ing party shall enter an acknowledgment of satisfaction.

Petitioners’ claims of a threat of execution notwithstand-

ing, it is beyond dispute that the monies were voluntarily

tendered because no process of execution was ever initi-

ated and the judgment was satisfied, per the statute,

“otherwise than by execution.”

There was absolutely nothing about this final hearing

or the documents executed therein which would indicate

that this was anything other than the final resolution of

the case. Based upon the transcript of final judgment

proceedings, it was abundantly clear that petitioners and

respondents were present to obtain and the court below

decreed a “final closure on this matter.” Transcript of Pro-

ceedings of Entry of Final Judgment, April 28, 1998, Resp.

App. 23 (emphasis added) (hereinafter “Transcript of

Final Judgment Proceedings”). Petitioners expressly

approved the terms of the final judgment as ordered by

the trial court:

MR. O’DEAR (attorney for petitioners): Judge,

on behalf of the Turbomeca defendants, we do

acknowledge that this final judgment is in order,

which is consistent with the court’s rulings on

these various matters.

Resp. App. 14. Indeed, petitioners expressly sought the

release and discharge agreements by respondents as a

condition to their payment of the judgment:

MR. O’DEAR: Your Honor, at this time we

would ask that Mr. Robb and his clients sign the

acknowledgments of satisfaction of judgments,

which we have provided to them.

MR. ROBB: We agree to do so, Your Honor.

Your Honor, we have now signed and executed

and are in the process of notarizing the

acknowledgments . . .

MR. O’DEAR: We acknowledge receipt of this

document. Resp. App. 18.

These proceedings established unequivocally the

consensual nature of the payment in exchange for respon-

dents’ complete release of petitioners and its acceptance

by all as the final accord and satisfaction of the litigation.

At this hearing rendering final judgment and release of

all claims, petitioners never stated that they were paying

the judgment involuntarily so as to avoid further pay-

ment of post-judgment interest or under duress to avoid

execution on the appeal bond, as they now claim to this

Court. Pet. 8. Any threat of execution on an appeal bond

(which the respondents had a legal right to demand and

the court had full authority to order) is certainly not the

kind of “duress” that would render payment on a judg-

ment involuntary especially where that appeal bond had

already been in place for almost three years. It is not

“duress” to threaten to do what one has a legal right to

do. Gustin v. F.D.I.C., 835 F. Supp. 503, 508 (W.D. Mo.

1993) (applying Missouri law).

To the contrary, petitioners voluntarily paid the judg-

ment with the intent that respondents “forever release

and discharge” them. Petitioners on their own included

the “release and discharge” language in the acknowledg-

ment of satisfaction of judgment documents:

MR. WILLIAMS (counsel for co-respondents

Wanda and James Barnett, Sr.): Your Honor, if I

may, | take it the defendants have approved the

form and content of the satisfaction of judgment

since you supplied it to us, is that correct?

MR. O’DEAR (attorney for petitioners): Oh, yes.

Yes. Resp. App. 18.

It is well-settled law not only here but also in Mis-

souri that voluntary payment of a judgment amounts to

accord and satisfaction and extinguishes the right to

appeal that judgment.> Thorp v. Bonnifield, 177 U.S. 15,

3 Petitioners’ cited case of Rosenblum v. Jacks Or Better of

America West, Inc., 745 S.W.2d 754 (Mo. App. 1988), squarely

supports respondents’ position in holding that “voluntary

payment of a judgment precludes appeal of that judgment.” Id. at 763

(emphasis added). There was no “threat of execution” as stated

by petitioners as the judgment in that case was not even fully

satisfied. Instead, the court noted that “documents appended to

appellants’ brief clearly reflect that payment of the judgment

was made in lieu of posting a supersedeas bond or submitting to

execution, and not voluntarily, in a sense that payment was

made so as to end the matter.” Id. at 764. Petitioners in the case

at bar already had a bond posted and payment was clearly made

to “end the matter” as they took an unrestricted general release

from respondents.

Petitioners cite Cahill v. New York, N.H. & H.R. Co., 351 U.S.

183 (1956) for the proposition that payment of a judgment does

not necessarily render a case moot. Pet. 8 at n.6. However, in

that case, “[pJetitioner was informed that respondent intended

to pursue its remedies notwithstanding payment of the

judgment,” 351 U.S., at 183, a fact upon which the Court

specifically relied. Id. Also, the Court specifically noted that the

18-19 (1900); Little v. Bowers, 134 U.S. 547, 556 (1890);

Leonard v. Pioneer Finance Co., 568 S.W.2d 937, 943-44 (Mo.

App. 1978) (defendant who makes voluntary payment of

judgment “is barred from appealing that judgment”);

Noah v. German Insurance Company, 78 Mo. App. 370,

373-74 (1898) (payment of final judgment estops both

parties from further litigating the case). This is especially

so where the general release, discharge, tender of funds,

and acknowledgment of satisfaction were all expressly

approved by the court. Indeed, the court approved imme-

diate release of the funds to respondents. Resp. App.

21-22. Strong considerations of comity and finality weigh

in favor of according preclusive effect to the general

release and discharge, as interpreted under Missouri law.

Moreover, petitioners induced and invited respondents

to negotiate the tendered checks promptly and to make

use of the funds immediately:

~MR. O’DEAR (counsel for petitioners): I would

like to say too for the record, I am presuming

everybody is going to go to the bank this after-

noon. There shouldn't be any reason why anybody

doesn't have the money by this afternoon.

MR. ROBB: On behalf of our client, that’s our

intention, Your Honor.

district court denied an application for a stay of execution. Here,

petitioners did not reserve any further rights, did not advise

respondents of their intention to appeal to the U.S. Supreme

Court, and never requested a stay of execution which surely

would have been granted given the existence of an adequate

appeal bond in the amount of-$134 million.

Petitioners’ citation of United States ex rel. H & S Indus., Inc.

v. F.D. Rich Co., 515 F.2d 760 (7th Cir. 1975), is similarly

misplaced because in that case both parties “contemplated

appealing, and did in fact appeal.” Id. at 765.

Paha vores eat eae

Peseta tt ce Was

NE BOI ABA

Resp. App. 22-23 (emphasis added). Both petitioners and

respondents clearly demonstrated an intention and

expectation that the funds would be put to immediate use

by the respondents. Respondents’ acceptance and benefi-

cial use of the judgment monies is based not only on the

final judgment of the Missouri court following exhaustion

of all appeals, but also on the petitioners’ explicit promise

that respondents would “have the money by this after-

noon.” The release and discharge constitutes a contract —

to wit, one expressly approved by the court - and peti-

tioners’ actions in inducing actual reliance by respon-

dents as to the beneficial use of the monies is a classic

instance of estoppel. Missouri Highway and Transportation

Comm. v. Myers, 785 S.W.2d 70, 73 (Mo. banc. 1990).

Both petitioners and respondents have accepted the

finality of the judgment by acting in significant reliance

upon the release and final judgment. Petitioners have

claimed the benefit of the release by applying for a credit

under Missouri law for the $26.5 million paid in punitive

damages in Barnett in the companion case of Letz v.

Turbomeca, S.A. pending before the Missouri Supreme

Court, Case No. 80558 (Subst. Brf., p. 92).4 Petitioners

cannot accept the advantages of this judgment in the

companion case while at the same time seeking to appeal

from it.

This Court has long recognized the “acceptance of

benefits doctrine” which provides that a party who

accepts the benefits of a judgment is precluded from

appealing that judgment. Embry v. Palmer, 107 US. 3,

18-19 (1883); see also Winfield Inns v. Edward Leroux Group,

Inc., 896 F.2d 483, 488-89 (11th Cir. 1990) (“acceptance of

+ Mo. Rev. Stat. § 510.263.4 provides a credit for “amounts

previously paid by the defendant for punitive damages arising

out of the same conduct.”

benefits” doctrine provides that “a party who voluntarily

and knowingly accepts the benefits of a judgment or

decree cannot seek a reversal of the judgment or decree

on appeal”). Petitioners have liquidated the respondents’

actions in the case at bar precisely so they could claim a

credit under the Missouri statute in the companion case.

Their treatment of this case as fully and finally satisfied

renders moot any further appellate action and renders

this Court without jurisdiction to hear this writ.

Respondents have detrimentally relied on the final

judgment and petitioners’ representations in several

respects. Respondents have incurred substantial tax lia-

bilities and other fees and expenses incurred with accep-

tance of the final judgment in full reliance on petitioners’

representations. Resp. App. 1, 6. In further reliance, as

part of the final judgment and with the full knowledge

and consent of petitioners, respondents extinguished and

paid the claims of the State of Missouri for one-half of the

net punitive judgment, a sum of $4,742,199.° Pet. App. 40.

Petitioners have no recourse under Missouri law for

recovery of these funds in that they were tendered and

paid for pursuant to the court order with full and lawful

consideration, i.e., release and discharge of all claims

against petitioners.

Accordingly, the full payment of the judgment and

the general release executed as between petitioners and

respondents in the lower court effectively extinguish any

jurisdiction of this Court. As the Court lacks jurisdiction

under 28 U.S.C. § 1257, the petition should be denied.

5 Indeed, petitioners directly tendered the payment of

$4,742,199 to the State of Missouri “in full and final satisfaction

of any interest the State has or may have in this matter.” Resp.

App. 21.

ide itd ee oo

II. ONCE PETITIONERS’ MISSTATEMENTS OF MIS-

SOURI LAW AND OF FACT ARE CORRECTED,

THIS CASE PROVIDES NO REASON TO ELABO-

RATE FURTHER DUE PROCESS CLAUSE LIMITA-

TIONS ON PUNITIVE DAMAGE AWARDS.

Petitioners do not claim that the court below articu-

lated an interpretation of the standards announced by

this Court in BMW v. Gore, 116 S.Ct. 1589 (1996), that

conflicts with the interpretation of any other federal or

state court. Nor do petitioners claim that the court below

articulated an interpretation of the BMW standards that

conflicts with any particular language in BMW itself.

Rather, petitioners’ only claim is that the BMW v.

Gore standards are themselves insufficient to the extent

that they allow a punitive damage award to stand on

petitioners’ slanted version of the law and facts of this

case. Petitioners do not propose any particular elabora-

tion of those standards that they think would be helpful

and warranted. Instead, they merely suggest that this

Court, with no help from petitioners, might want to pro-

vide “[s]ome further guidance,” Pet. at 14, and “explain

when enough is enough.” Id. at 16.

Most importantly, however, many of petitioners’

statements about Missouri law and the facts of this case

are patently erroneous or misleading. Contrary to peti-

tioners’ misstatements, Missouri law has provided clear

notice for over a century that punitive damages are avail-

able in a wrongful death action; the punitive damages

liability imposed on petitioners related solely to the

deaths their actions caused in Missouri, not to extrater-

ritorial damage as petitioners claim here; the lower

court’s treatment of petitioners’ financial status was fully

in accord with this Court’s guidelines and did not conflict

with other lower court treatments; and in determining the

appropriateness of the punitive damage award to respon-

dents, the court below fully considered the cumulative

effect of that award and the award of punitive damages

in Letz v. Turbomeca Engine Corp. et al., the other wrongful

death action arising from the same accident that killed

Mr. Barnett.

Once Missouri law and the facts are set straight, it is

clear that this case provides no reason for this Court to

provide any further elaboration on BMW v. Gore, given

the complete absence of lower court conflict or alleged

error in application, and despite petitioners’ vague calls

for clarification.

It is highly significant that petitioners present no

issue here as to the due process adequacy of Missouri's

procedural safeguards on punitive damage awards. Peti-

tioners have never in this case challenged any of Mis-

souri’s procedural safeguards as violating due process, as

so found by the Missouri Court of Appeals:

Because Turbomeca does not argue on appeal

that Missouri’s standards and controls are so

inadequate as to violate due process, this issue

is outside the scope of this opinion.

Pet. App. A-38 n.12. Indeed, Missouri’s procedural safe-

guards on excessive punitive awards substantially exceed

what this Court has determined to be minimal due pro-

cess. These protections include bifurcation of the compen-

satory and punitive findings, clear instructions to the jury

patterned after Haslip as to the function of punitive dam-

ages “to punish and deter defendants,” inadmissibility of

defendants’ financial data until finding of punitive lia-

bility, trial and appellate court authority to remit punitive

awards, and more. Mo. Rev. Stat. § 510.263. Each and

every one of the foregoing safeguards was requested by

and afforded petitioners in this case.

Sis 3

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CR es LET aR

pile it wulecihsieelteg Feb aaa

Given the propriety of the Missouri procedures on

assessment of punitive damages, respondents respect-

fully submit that the remitted punitive judgment there-

fore “is entitled to a strong presumption of validity” as

pronounced by this Court in TXO Production Corp. v.

Alliance Resources Corp., 509 U.S. 443, 457 (1993); see also

BMW wv. Gore, 116 S.Ct. at 1604 (Breyer, J., concurring).

Petitioners’ sole mission is to re-argue the evidence and

to engage this Court in a factbound determination of the

reasonableness of the final punitive judgment in this case.

Therein lies no claim to the review process of this Court.

A. The Missouri Appellate Court Properly Fol-

lowed The Due Process Guidelines Set Forth In

BMW wv. Gore As Well As The More Stringent

Missouri Law Standards.

The Missouri Court of Appeals, in its unanimous

(11-0) opinion, not only reviewed the punitive damage

award to assure that it complied with this Court’s deci-

sion in BMW of North America, Inc. v. Gore, 116 S.Ct. 1589

(1996), but also to assure that the amount met the addi-

tional strict standards of Missouri law. See Pet. App.

A-39-50. The court gave extended consideration to each

of the three BMW v. Gore factors. First, it examined the

reprehensibility of petitioners’ conduct and, after a

detailed analysis, concluded that:

[G]iven the testimony of Turbomeca’s own offi-

cers, it is not difficult to understand why a large

punitive damage amount was awarded. Turbo-

meca’s conduct was unquestionably reprehensible.”

Pet. App. A-47 (emphasis added).

Second, the Court of Appeals examined the ratio of

compensatory and punitive damages and observed that

“(t]he trial court’s remittitur of $87.5 million in punitive

damages, and to $25 million in compensatory damages

exhibits a ratio of just over 3:1,” and “the trial court’s

remittitur evinces a ‘reasonable relationship’ between

actual and punitive damages given the nature of Turbo-

meca’s conduct.” Pet. App. A-47 (citing BMW, 116 S.Ct. at

1601). :

Third, the Court of Appeals examined how the puni-

tive damage award compared to penalties authorized or

imposed in comparable cases and concluded that the

punitive damage award “was the only real way to deter

the conduct of Turbomeca” which based its decisions

solely on economics and in complete disregard to

whether persons would be injured or killed.© Pet. App.

A-48.

After considering the factors enunciated by this

Court in BMW v. Gore as relevant to federal due process

the reason they did not inform world-wide operators or civil

aviation authorities of their defective engine part was to save

the cost of recall and to not disturb sales (Nichols 56-57; Meliet

162-64). A recall and retrofit of the defective helicopter engine

part would have been solely at petitioners’ cost and in 1991 that

cost would have been in excess of $48 million (Nichols 61-62, Tr.

1151, 1112-13). According to the Missouri court:

The company always seemed to be motivated by

cutting costs, saving money and increasing sales — all

at the expense of the unlucky owners. The TU 76 was

modified to save money. The new and replacement

parts took longer to implement for some customers

than to build the entire original engine because of

“being blocked” by its commercial sales department.

Its laissez faire attitude of never notifying, even

post-Letz and Barnett, owners of the lethal,

undetectable dangers inherent in the modified TU 76,

along with its net worth and financial ability justifies

the imposition here of substantial punitive damages.

Pet. A-49.

2 CANT Ace Sect Det SEEN 2, AML he PORE E ARSED RPG a A A TABOR fT BH Se hme

;

analysis, the Court of Appeals went on to fully examine

eight additiona) factors that further constrain punitive

damage awards under Missouri law, including “(1) the

degree of malice or outrageousness of the defendant's

conduct; (2) aggravating and mitigating circumstances;

(3) the defendant’s financial status; (4) the character of

both parties; (5) the injury suffered; (6) the defendant's

standing or intelligence; (7) the age of the injured party;

and (8) the relationship between the twc parties.” Pet.

App. A-48. In the end, the Court of Appeals further

remitted the punitive award to $26.5 million and con-

cluded that that sum was reasonable in that it was neces-

sary and sufficient to punish petitioners. Id. at A-47-50.

Thus, unlike the Alabama courts in BMW v. Gore, the

lower courts in this case did not apply standards that

were “vague and open-ended to the point where they

risk[ed] arbitrary results.” BMW v. Gore, 116 S.Ct. at 1605

(Breyer, J., concurring). Rather, they diligently applied

the standards that this Court formulated in BMW, as well

as the additional Missouri safeguards. Because the BMW

Court understandably declined to “draw a bright line

marking the limits of a constitutionally acceptable puni-

tive damages award,” BMW v. Gore, 116 S.Ct. at 1604, the

lower courts here did all that they could possibly do to

protect petitioners’ due process rights.

B. Missouri Law Has Provided Clear Notice For

Decades That Punitive Damages Are Available

In Wrongful Death Cases.

Petitioners’ claim that Missouri law did not ade-

quately notify them of their potential liability for punitive

damages is ludicrous. The statutory language authorizing

the award of punitive damages in this case — a provision

specifying that, in determining an award of damages that

are fair and just in a wrongful death case, “[t]he mitigat-

ing and aggravating circumstances attending the death

may be considered” —- has remained unchanged since

1855, 138 years before petitioners’ conduct caused Mr.

Barnett’s death. See Mo. Rev. Stat. § 537.090 (1994) (cur-

rent provision); Mo. Rev. Stat. Ch. 51, § 4 (1855) (allowing

for a jury to award “damages as they may deem fair and

just, . . . and, also, having regard to the mitigating or

aggravating circumstances attending such wrongful act,

neglect or default”).

Petitioners’ chief grievance seems to be that this pro-

vision does not contain the specific term “punitive dam-

ages.” Yet since at least 1883, 110 years before Mr.

Barnett’s death, the Missouri Supreme Court has made

clear that when “aggravating circumstances” are present,

“fair and just damages” may include exemplary or puni-

tive damages. See Nichols v. Winfrey, 79 Mo. 544, 552

(1883) (“[I]f the circumstances are of an aggravating char-

acter, the jury [is] not held to the mere pecuniary injury,

but may give punitive damages”). Missouri courts have

never wavered in this interpretation over the intervening

period of more than a century. See, e.g., Parsons v. Missouri

Pac. Ry. Co., 6 S.W. 464, 468 (Mo. 1888); Goode v. Central

Coal & Coke Co., 151 S.W. 508, 511 (Mo. App. 1912) (hold-

ing that the words “mitigating or aggravating circum-

stances” found in the wrongful dcath statute “are

intended to apply only to cases in which it would be

proper to allow punitive damages”).

In light of the unbroken 110-year line of Missouri

precedent interpreting the Missouri wrongful death stat-

ute to authorize punitive damage awards, there is not the

slightest truth to petitioners’ assertion that a “diligen|t]

examin[ation of] Missouri statutory and case law” would

leave it with “no conceivable reason to think” that it

could face punitive damages.” Pet. 10-11. Thus, the Court

of Appeals was fully justified in concluding that “it could

not reasonably be said that Turbomeca did not have ade-

quate ‘notice’ of the severity of the sanction that might

befall them as a result of their conduct. The aforemen-

tioned testimony reveals this fact.” Pet. App. 48.

Petitioners artfully insinuate that the Missouri

Supreme Court’s decision in Bennett v. Owens-Corning

Fiberglas Corp., 896 S.W.2d 464 (Mo. 1995), issued two

years after the accident that gave rise to this action, was

the first to hold that the “aggravating circumstances”

language authorized punitive damage awards. Pet. 9-10.

7 Petitioners also intimate that they did not have proper

notice of the particular amount of punitive damages that might

be assessed against them, since no previous award of punitive

damages in Missouri had been as large. Pet. 10. The criterion for

punitive damage awards implied in this objection - that no

award can ever be larger than the largest previous award in the

state - is obviously ridiculous and has no basis in this Court's

precedent. In BMW of North America, this Court held that three

factors were relevant to determining whether a defendant had

“adequate notice of the magnitude of the sanction that [the

state] might impose” for violating state law: “the degree of

reprehensibility” of the conduct; “the disparity between the

harm or potential harm suffered by [the plaintiff] and his

punitive damages award”; and “the difference between [the

award] and the civil penalties authorized or imposed in

comparable cases.” BMW of North America, 116 S.Ct. at 1598. To

the extent that any of these factors involve comparison with

previous awards in the same jurisdiction, they require

comparison, not of raw amounts of awards, but of the degrees of

reprehensibility, disparities from harm or potential harm, and

relation to civil penalties in previous cases. Because petitioners

make no attempt to go beyond the raw numbers in previous

cases, their citation of those cases sheds no light on the issue

whether they had adequate notice of the severity of punitive

damages to which their egregious conduct might expose them.

In fact, however, Bennett expanded defendants’ rights in

Missouri wrongful death actions, rather than expanding a

defendant's liability for punitive damages.

In Bennett, a wrongful death plaintiff argued that a

jury’s award of damages for “aggravating circumstances”

did not always amount to punitive damages and, there-

fore, did not always have to pass the same exacting

review as a punitive damage award. The Bennett court

rejected this contention, concluding that defendants

should receive the benefit of punitive damage procedures

and review whenever a jury based a damage award on

“aggravating circumstances.” Bennett, 896 S.W.2d at 466.

Importantly, Bennett afforded Missouri wrongful

death defendants not only due process review under

federal law, but also additional protection under state

law. Petitioners omitted mention of these protections in

their petition, notwithstanding the fact that they deliber-

ately chose to avail themselves of those protections in the

lower courts. Section 510.263 (1) of Missouri Revised

Statutes (1994), provides that “[a]ll actions tried before a

jury involving punitive damages shall be conducted in a

bifurcated trial before the same jury if requested by any

party.” In this case, petitioners invoked the protection of

this bifurcation provision. In doing so, they obtained the

benefit of a companion provision, which provides that

“le]vidence of defendant’s financial condition shall not be

admissible in the first stage of such trial unless admissi-

ble for a proper purpose other than the amount of the

punitive damages.” Mo. Rev. Stat. § 510.263 (2) (1994).

Thus, petitioners took full advantage of Bennett to

protect themselves against any prejudice that might arise

from admission of evidence of the defendant’s financial

condition when liability and compensatory damages are

litigated, even though it has never been held that such

protections are required by due process. It is therefore

particularly ironic that petitioners now misleadingly por-

tray Bennett as the first case that could have notified them

that their conduct might subject them to punitive dam-

ages liability.

C. The Punitive Liability Imposed Upon Peti-

tioners Was Related Solely To The Deaths That

Occurred In Missouri.

Petitioners contend that the punitive damage award

in this case was based in part on their conduct with

regard to other helicopter engines in other jurisdictions,

seeking to gain protection under this Court’s pronounce-

ment that “a State may not impose economic sanctions on

violators of its laws with the intent of changing the

tortfeasors’ lawful conduct in other States.”“8 BMW of

North America v. Gore, 116 S.Ct. at 1597. Although no State

countenances the deliberate marketing of dangerous

machines, no effort was made in this case to punish

petitioners for conduct, whether lawful or unlawful, in

other jurisdictions.

The proof was directed at showing that petitioners’

failure to warn the deceased and to replace a part that

8 Unlike the petitioner in BMW of North America, petitioners

here have made no attempt to show that their conduct was

indeed lawful in other states or countries. They thus ask this

Court to elaborate on its holding in BMW of North America

without knowing whether petitioners’ conduct was lawful in

some other jurisdiction, as in BMW of North America itself, or

unlawful, thus raising a question that BMW of North America

expressly reserved. See BMW of North America, 116 S.Ct. at 1598

n. 20 (“Given that the verdict was based in part on out-of-state

conduct that was lawful where it occurred, we need not

consider whether one State may properly attempt to change a

tortfeasors’ unlawful conduct in another State.”). This void in

the record leaves this Court without the means of deciding

whether the question is even present on the facts of this case.

they knew was defective was not only intentional, but

also was the result of a deliberate process in which peti-

tioners decided to save $48 million rather than inform the

users of their product that their lives were in danger. This

use of “evidence describing out-of-state transactions” is

precisely the use that the Supreme Court has deemed

“relevant to the determination of the degree of reprehen-

sibility of the defendant’s conduct,” BMW v. Gore, 116

S.Ct. at 1598 n. 21, and therefore perfectly admissible and

consistent with due process. Id. at 1599-1600; TXO Produc-

tion Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 n.

28 (1993).

Thus, respondents introduced considerable evidence

at trial that the helicopter engine part that caused the

death in this case had failed again and again both outside

the United States and inside the United States. The

number of incidents putting petitioners on notice of the

danger that persisted as a result of their failure to warn

or replace the defective part is set out thoroughly by the

Missouri Court of Appeals. See Pet. App. A-7-15.

Both the jury instructions at trial and the Court of

Appeals’ analysis on appeal are plainly directed at the

use of “other incidents” evidence deemed relevant and

constitutionally permissible in BMW v. Gore. The trial

judge in this case instructed the jury that, to award puni-

tive or exemplary damages, it had to find that petitioners’

actions “showed a complete indifference to or a conscious

disregard for the safety of others.” See Pet. App. A-17. In

reviewing the punitive damage award, the Court of

Appeals specifically held that “the amount of the puni-

tive damage award must somehow be related to the

wrongful act and the actual or potential injury resulting

therefrom.” See Pet. App. A-37. Thus, it is clear that the

jury was asked to examine petitioners’ conduct as it

related to the facts of this case, and the Missouri Court of

Appeals examined the punitive damage award in light of

the wrongful act in this case and the actual or potential

injury at stake in this case.

Petitioners were free to argue to the jury, if they

chose, that they did not foresee that their helicopter

would crash in Missouri or would cause death in Mis-

souri, and that they only foresaw that the defective part

they left in their machines was threat to the rest of the

world. They made no such argument because it would

have been absurd. The question was whether petitioners

deliberately put the deceased at risk of death and

whether they did so reprehensibly. Given the evidence in

this case, the jury reasonably decided to impose constitu-

tionally permissible punitive damages.

Petitioners’ claim of extraterritorial punishment is

not only baseless, but it also has not been preserved for

review in this Court. The evidence in this case clearly

established that there were 2,850 helicopters of the type

at issue in this case operating worldwide and that one-

third of these were in use in the United States. See Pet.

App. A-42. Petitioners had a full opportunity to offer

evidence, if they chose, on the locations of these helicop-

ters, since they sold and maintained them. They offered

no such evidence. Nor did they make any argument in

the lower courts that the award amounted to punishment

for conduct in other states.? “[O]rdinarily, this Court does

not decide questions not raised or involved in the lower

court.” Youakim v. Miller, 425 U.S. 231, 234 (1976). Peti-

tioners make no attempt to explain why this case justifies

° In their motions for remittitur, both petitioners failed to

preserve any claim whatsoever that the punitive award was

excessive under federal Due Process because of “extraterritorial

punishment.” (L.F. 692-700). They made only a passing

reference to such a claim in their alternative motion for new

trial, which is not at issue on their petition.

the extraordinary step of entertaining a question they

failed to raise in the Missouri courts below.

D. The Missouri Appellate Court Properly Consid-

ered Evidence Of Financial Condition On The

Amount Of Damages Needed To Punish And

Deter Petitioners’ Unlawful Conduct And Peti-

tioners’ Argument About Net Worth Is Incom-

plete As Well As Misleading.

Petitioners argue that the punitive damage award in

this case violates due process because it is large in rela-

tion to petitioners’ respective net worths. Petitioners’

claim that the remitted punitive judgment represents

750% of Turbomeca Engine Corporations’ net worth. See

Pet. 13. This claim must be completely disregarded

because there was absolutely no evidence offered or

admitted at trial as to the net worth or any other financial

condition of Turbomeca Engine, the wholly-owned Texas

subsidiary. Turbomeca so admitted on the record:

MR. GHERTNER (trial counsel for Turbomeca):

Your Honor, there was no proof of net worth

with respect to Turbomeca Engine Corporation.

(Tr. 2788). Thus, respondents have never had any oppor-

tunity to analyze or contest the figure petitioners now

allege in their petition, nor to consider the appropriate-

ness of isolating Turbomeca Engine’s net worth in light of

the corporate relationship between the two companies.

On this point, the Missouri Court of Appeals found

that Turbomeca Engine Corporation was a wholly-owned

subsidiary of Turbomeca, S.A.-See Pet. App. A-2. Peti-

tioners represent to this Court that they are both indirect

subsidiaries of Labinal, S.A., a French corporation. See

Pet. 1. Notwithstanding their formal corporate relation-

ship, the Chief Executive Officer of Turbomeca, S.A., Jean

Bernard Cocheteux, testified that it exercised control and

EE BOLI EA RE OS OEE

PE SE SIS RINE MA RPT BPR OS Fe RS ET Oe 8 ER RRO Rt on

direction over Turbomeca Engine Corporation. Cocheteux

10. Given Turbomeca Engine Corporation’s complete lack

of independence from Turbomeca, S.A., it is inappropri-

ate to isolate Turbomeca Engine’s net worth — whatever it

actually is — for purposes of punitive damage analysis.

Thus, petitioners’ proffered net worth for Turbomeca

Engine Corporation provides a particularly bad factual

basis for any inquiry this Court might desire to conduct

on the relevance of the net worth/punitive damage

award ratio to due process limitations.

Petitioners’ repeated claim that the remitted punitive

award represents “22% of TSA’s net worth” is false and

misleading as demonstrated by the record below. Peti-

tioners misconstrue the financial data, and, otherwise,

claim poverty with respect to the French parent corpora-

tion, Turbomeca, S.A. Respondents introduced extensive

evidence at trial of the complete financial condition of

TSA (Tr. 2769-2772). Turbomeca, S.A.’s total combined

sales for the two years preceding the crash were in excess

of $973 million (Tr. 2769-70). The remitted punitive award

represents less than 2.7% of this total. Turbomeca, S.A.

also had on hand over $710 million in assets (Tr. 2770) of

which the remitted punitive award represents 3.7%. In

discussing that evidence, the Missouri Court of Appeals

pointed out that Turbomeca’s “net worth and financial

condition justifies the imposition here of substantial punitive

damages.” Pet. App. 49 (emphasis added).

Petitioners’ repeated argument that the remitted

punitive award would be “financially ruinous” is absurd

given that the judgment already has been paid in full,

Turbomeca continues as a thriving world-wide business,

and payment was made pursuant to a $1 billion insurance

policy where the carriers expressly agreed to cover all

punitive damages (Tr. 3202-29). At a post-verdict hearing,

petitioners boasted to the trial judge that they had appli-

cable and sufficient insurance coverage applying to all

TU 76 incidents in the United States and world-wide in

the total amount of $1 billion and that punitive damages

would be covered (Tr. 3265-69).

Under this Court’s formulation in BMW v. Gore, the

ultimate test of a punitive damages award is whether it is

“ “grossly excessive’ ” in relation to “the State’s legitimate

interests in punishment and deterrence.” BMW, 116 S.Ct.

at 1595. Whether a particular award of punitive damages

will properly punish a defendant’s unlawful conduct, and

deter it from future misconduct, necessarily depends in

part on the defendant’s financial condition; an award that

ruins an impoverished defendant may neither chasten

nor reform a defendant who has profited handsomely

from its wrongdoing. Thus, this Court has held that “the

‘financial position’ of the defendant” is one of the factors

properly considered in determining the validity of a

punitive damages award. Pacific Mutual Life Insurance Co.

v. Haslip, 499 U.S. 1, 21-22 (1991).

The court below properly considered the net worth of

petitioner Turbomeca, S.A. as part of its inquiry into that

company’s “financial position.” The evidence introduced

in this case, but conspicuously omitted from the petition,

illustrates exactly why no court has or should consider a

net worth figure conclusive of a business organization’s

financial position. The jury had before it conflicting evi-

dence of Turbomeca, S.A.’s net worth - petitioners’ self-

serving reports suggesting a figure of $122,565,470, and

respondents’ evidence showing a net worth almost 75%

larger. While the petitioners’ failure to mention the larger

figure shows their willingness to engage in distortion in

their petition in this Court, the disparity between the two

figures shows why net worth will never provide a simple,

complete picture of a business organization’s financial

position. Valuation of the assets and liabilities of an ongo-

ing business is never an easy matter, and interested par-

ties can produce widely varying yet nonfalsifiable

valuations.

In view of the other relevant information the Mis-

souri appellate court had about petitioners’ financial

position — information omitted from petitioners’ discus-

sion here but fully considered below - it is not hard to

understand why the lower court found the punitive dam-

age award as ultimately remitted to be reasonable. Once

one recognizes the folly of petitioners’ implicit sugges-

tion that their contested net worth figure be given some

talismanic significance in a due process inquiry, it

becomes apparent that the facts in this case do not pro-

vide any reason for this Court to elaborate on the factor

of the defendant's “financial position,” which is as it

stands a perfectly sufficient component of the due pro-

cess analysis.!°

10 Petitioners hint that the lower court’s approval of the

punitive award in this case places it in conflict with the Eighth

Circuit’s decision in Equal Employment Opportunity Comm'n v.

HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998), which they describe

as holding that “a punitive assessment of five percent of the

defendant’s net worth is per se excessive.” Pet. 13. In fact, the

court in HBE Corp., applying Missouri law on remittiturs rather

than federal due process law, made no such holding, but merely

concluded that upon consideration of all of the factors deemed

relevant under Missouri law, including “the nature and extent

of the misconduct, the impact on the individual plaintiffs, a

reasonable relation between the compensatory and punitive

damages, and an amount sufficient to punish and deter under

all the circumstances,” id., a remittitur was warranted. Thus,

HBE Corp. creates no conflict of federal law, and, indeed, no

conflict at all.

E. The Missouri Appellate Court Thoroughly

Considered the Cumulative Impact Of A Sepa-

rate Punitive Award In A Companion Case

Arising From The Same Incident

Petitioners also argue that the Court of Appeals

imposed an unfair “cumulative punishment” by uphold-

ing an identical punitive damage award in a companion

case arising out of the same incident. Pet. 14-16. How-

ever, the Court of Appeals carefully considered this issue

and applied existing Missouri law which holds that ” ‘[i]t

is a desideratum of the statute that a defendant not be

required to pay redundant punitive damages based on

the same conduct.’” Pet. App. A-52 (quoting Elam v.

Alcolac, Inc., 765 $.W.2d 42, 231 (Mo. App. 1988)). The

statute that the court refers to is Mo. Rev. Stat. § 510.263.4

(1994), which provides for a credit of amounts previously

paid by the defendant for punitive damages arising out of

the same conduct.

Applying this principle of Missouri law to both this

case and its companion, the Court of Appeals concluded

that:

[T]he remitted amounts of punitive damages in

each case, when combined, reach the proper

result and supply the relief that the credit stat-

ute envisions and the United States Supreme

Court has enunciated: that total punitive dam-

ages, where there are successive suits, will not

go beyond due process limits on punishment

and deterrence.

Pet. App. A-53 (emphasis in original).

Thus, the Missouri Court of Appeals carefully exam-

ined the total sum of the punitive awards in the two cases

and applied both the Due Process analysis of BMW as

well as the additional protections afforded by Missouri

statutory and case law in upholding the remitted award

in this case.

III. THERE IS NO REASON TO CONSIDER A

NOVEL APPLICATION OF THE EXCESSIVE

FINES CLAUSE TO PUNITIVE DAMAGES IN

CIVIL CASES WHEN NO OTHER FEDERAL OR

STATE COURT HAS CONSIDERED THE ISSUE

AND WHEN EXCESSIVE FINES ANALYSIS

WOULD ONLY DUPLICATE THE DUE PROCESS

ANALYSIS THOROUGHLY PERFCRMED BY

THE COURT BELOW.

Petitioners issue another vague and open-ended invi-

tation to this Court to “address the Eighth Amendment

implications of the State’s participation” in the punitive

damages awarded to respondents. Pet. 19. Petitioners do

not identify a single case that has ever decided whether

the Excessive Fines Clause, U.S. Const. amend. VIII,

limits a state’s share in punitive damage awards in pri-

vate litigation. More important, petitioners concede that

the court below did not address the issue. Pet. 17-19.

Thus, petitioners ask this Court to venture into com-

pletely uncharted territory.

There is no good reason for this Court to take the

extraordinary step of addressing the Excessive Fines

Clause issue without the benefit of consideration by any

lower court. Petitioners hang their request on the thin

thread of a reservation in this Court’s ruling in Browning-

Ferris Industries, Inc. v. Kelco Disposal, Inc., 492 U.S. 257,

260 (1989), that the Excessive Fines Clause does not gen-

erally apply to “awards of punitive damages in cases

between private parties.” The Browning-Ferris Industries

Court noted that its ruling was circumscribed by the facts

of the case before it, in which “the government neither

ha[d] prosecuted the action nor ha[d] any right to receive

a share of the damages awarded.” Id. at 264. Petitioners

seize on the second half of this limiting language, and

contend that the facts of this case afford this Court an

opportunity to address the application of the Excessive

Fines Clause when the state does have a “right to receive

a share of the damages awarded.”?!

However important this reserved issue might have

been immediately after the decision in Browning-Ferris

Industries — and the absence of a single citation in peti-

tioner’s petition to a lower court decision on the issue

casts serious doubt even on its initial importance — that

importance has vanished since this Court’s landmark rul-

ing in BMW v. Gore, 116 S.Ct. 1589 (1996), that all punitive

damage awards are subject to scrutiny for excessiveness

under the Due Process Clause. It is no longer in doubt, as

it would have been immediately after Browning-Ferris

Industries, that the size of the punitive damage award in

this case is subject to federal constitutional limitations.

The court below thoroughly reviewed the award in this

case in light of the standards announced by this Court in

BMW, as well as eight additional standards under Mis-

souri law. See Pet. App. A-36-48.

Petitioners nowhere suggest that a court’s analysis of

a punitive damage award under the Excessive Fines

Clause would be the slightest bit different than the Due

11 Petitioners do not claim that the state was involved in

any way in the prosecution of this action, and indeed it was not;

the state’s participation in the punitive damage award comes

solely by virtue of a general law providing that “[f]ifty percent

of any final judgment awarding punitive damages after the

deduction of attorneys’ fees and expenses shall be deemed

entered in favor of the State of Missouri.” Mo. Rev. Stat.

§ 537.675.2 (1994). Under this law, the State is not a party to the

trial proceedings. It did not appear or participate in the trial.

The jury that awarded punitive damages did not purport to

award anything to the State. Thus, the amount of punitive

damages awarded by the jury was unaffected by the fact that,

after punitive damages are awarded in Missouri, a portion may

go to the State.

Process Clause analysis announced in BMW and pains-

takingly implemented by the court below. To the contrary,

there is good reason to think that the two analyses would

be duplicative. In United States v. Bajakajian, 118 S.Ct.

2028, 2036 (1998), this Court announced that a punitive

forfeiture would “violat[e] the Excessive Fines Clause if it

[were] grossly disproportional to the gravity of the defen-

dant’s offense.”

Under the Due Process Clause analysis in BMW, “the

most important indicium of the reasonableness of a puni-

tive damages award is the degree of reprehensibility of a

defendant’s conduct.” BMW, 116 S.Ct. at 1599. The BMW

Court noted with approval a formulation even more

strikingly similar to the Excessive Fines Clause standard

this Court recently announced in Bajakajian, noting that

both the plurality and the dissent in TXO Production Corp.

v. Alliance Resources Corp., 509 U.S. 443 (1993), “placed

special emphasis on the principle that punitive damages

may not be ‘grossly out of proportion to the severity of

the offense.’” BMW of North America, 116 S.Ct. at 1599

(quoting TXO Productions Corp., 509 U.S. at 453 (plurality

opinion); id. at 482 (O’Connor, J, dissenting)).

In sum, petitioners ask this Court to take the extraor-

dinary step of extending the Excessive Fines Clause to

reach punitive damage awards in civil cases and elaborat-

ing the proper Excessive Fines analysis in that context

before any lower court has considered the issue, yet they

do not suggest how such a novel analysis would add

anything to the Due Process analysis thoroughly applied

by the court below in this case. There is no good reason to

accept such an invitation, and every reason to decline it.

CONCLUSION

Petitioners’ voluntary payment and simultaneous

execution of an unrestricted general release extinguishes

any jurisdiction in this Court. Both petitioners and

respondents have relied upon the release in subsequent

actions.

The merits of the writ provide no basis for review in

that petitioners can cite to no conflict among the lower

courts on any important issue of federal law, and the

lower Missouri court properly applied BMW v. Gore in

substantially remitting the punitive award. The petition

for certiorari should be denied.

Respectfully submitted,

Gary C. Ross* #29618

ANITA Porte Ross #30318

Ross & Ross Lic

One Kansas City Place

1200 Main, Suite 3900

Kansas City, Missouri 64105

Telephone: (816) 474-8080

Facsimile: (816) 474-8081

Attorneys for Respondents

Kyong Ju Barnett, Jesse

Morgan Barnett and Mia

Kyong Barnett

July 23, 1998 *Counsel of Record

: heat

ion * )

ay -

cae

fad

teed

To As

APPENDICES

App. 1

APPENDIX A

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

AT KANSAS CITY

KYONG JU BARNETT, et al, ) CASE NO:

PLAINTIFFS ) CV93-24644

) DIVISON: 8

v. )

LA SOCIETE ANONYME

TURBOMECA FRANCE A/K/A )

TURBOMECA, S.A., et al.,

DEFENDANTS. )

)

ACKNOWLEDGEMENT OF SATISFACTION OF

JUDGMENT AND WAIVER OF ATTORNEY’S LIENS

(Filed April 28, 1998)

Plaintiffs, Kyong Ju Barnett and Jessie Barnett, their

attorneys of record, and each of them, pursuant to

Supreme Court Rule 74.11, RSMo 511.570 and RSMo

537.675, do hereby acknowledge that the final money

judgment entered in their favor against the defendants

herein on April 28, 1998, in this matter has been fully and

finally satisfied and that no further action in this case is

required of defendants for any purpose. Defendants’ ten-

der of payment shall forever release and discharge defen-

dants from any further obligations in this case except

payment of court costs as determined in the ordinary

course by the office of the Clerk of the Circuit Court of

Jackson County, Missouri. Said plaintiffs and their respec-

tive attorneys further state that any and all liens for

attorney fees and expenses be and hereby are expressly

waived in this matter.

App. 2

APPROVED AND ACKNOWLEDGED:

Dated: 4-28-98 /s/ Kyong Ju Barnett

Kyong Ju Barnett

Dated: 4-28-98 /s/ Jessie Barnett

Jessie Barnett

Dated: 4/28/98 /s/ Gary C. Robb

Gary C. Robb for himself

and on behalf of Robb &

Robb LLC

Dated: 4-28-98 /s/ Anita Porte Robb

Anita Porte Robb for herself

and on behalf of Robb &

Robb LLC

ATTORNEYS FOR

PLAINTIFFS KYONG JU

BARNETT and JESSIE

MORGAN BARNETT

STATE OF MISSOURI _ )

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Kyong Ju Barnett, to me personally known, who being by

me duly sworn, did say that she has read the foregoing

Acknowledgement of Satisfaction of Judgment and

Waiver of Attorney’s Liens, that the facts set forth therein

are true and correct and that she has signed the same as

her free act and will.

App. 3

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

My Commission Expires:

TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000

STATE OF MISSOURI _)

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Jessie M. Barnett, to me personally known, who being by

me duly sworn, did say that he has read the foregoing

Acknowledgement of Satisfaction of Judgment and

Waiver of Attorney’s Liens, that the facts set forth therein

are true and correct and that he has signed the same as

his free act and will.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

flit ninuibitiuiaris on

App. 4

My Commission Expires:

TERESA A. SHELL

Notary Public - Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000

STATE OF MISSOURI _)

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Gary C. Robb, to me personally known, who being by me

duly sworn, did say that he has read the foregoing

Acknowledgement of Satisfaction of Judgment and

Waiver of Attorney’s Liens, that the facts set forth therein

are true and correct and that he has signed the same as

his free act and will.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

My Commission Expires:

TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000

App. 5

STATE OF MISSOURI |)

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Anita P. Robb, to me personally known, who being by me

duly sworn, did say that she has read the foregoing

Acknowledgement of Satisfaction of Judgment and

Waiver of Attorney’s Liens, that the facts set forth therein

are true and correct and that she has signed the same as

her free act and will.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

My Commission Expires:

praesent Na rteedennittia

TERESA A. SHELL

Notary Public - Notary Seal

STATE OF MISSOURI

Platte County “

My Commission Expires: April 9, 2000

iinet

App. 6

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

AT KANSAS CITY

KYONG JU BARNETT, et al., ) CASE NO:

PLAINTIFFS . CV93-24644

| DIVISION: 8

LA SOCIETE ANONYME )

TURBOMECA FRANCE A/K/A?

TURBOMECA, S.A., et al., 7

DEFENDANTS. _ )

)

ACKNOWLEDGEMENT OF SATISFACTION OF

JUDGMENT AND WAIVER OF ATTORNEY’S LIENS

(Filed April 28, 1998)

Plaintiff Mia Kyong Barnett, a minor, by and through

her guardian ad litem, next friend and duly appointed co-

conservator, Kyong Ju Barnett, her attorneys of record,

and each of them, pursuant to Supreme Court Rule 74.11,

RSMo 511.570 and RSMo 537.675, do hereby acknowledge

that the final money judgment entered in their favor

against the defendants herein on April 28, 1998, in this

matter has been fully and finally satisfied and that no

further action in this case is required of defendants for

any purpose. Defendants’ tender of payment shall forever

release and discharge defendants from any further obli-

gations in this case except payment of court costs as

determined in the ordinary course by the office of the

Clerk of the Circuit Court of Jackson County, Missouri.

Said plaintiffs state that all liens for attorney’s fees and

App. 7

expenses be and hereby are expressly waived in this

: matter.

APPROVED AND ACKNOWLEDGED:

‘ Dated: 4-28-98 /s/ Kyong Ju Barnett

Kyong Ju Barnett, guardian

ad litem, next friend and

duly appointed co-

conservator for Mia Kyong

Barnett, a minor

Dated: 4-28-98 /s/ Gary C. Robb

Gary C. Robb for himself

and on behalf of Robb &

Robb LLC

Dated: 4-28-98 /s/ Anita Porte Robb

Anita Porte Robb for herself

and on behalf of Robb &

Robb LLC

ATTORNEYS FOR

PLAINTIFF KYONG JU

BARNETT, guardian ad

litem, next friend and

duly appointed

conservator, Mia Kyong

Barnett, a minor

STATE OF MISSOURI _)

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Kyong Ju Barnett, in her capacity as guardian ad litem,

next friend, and duly appointed co-conservator of Mia

Kyong Barnett, a minor, to me personally known, who

being by me duly sworn, did say that she has read the

foregoing Acknowledgement of Satisfaction of Judgment

and Waiver of Attorney’s Liens, that the facts set forth

therein are true and correct and that she has signed the

same as her free act and will.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

My Commission Expires:

TERESA A. SHELL

Notary Public - Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000

App. 9

STATE OF MISSOURI _ )

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Gary C. Robb, to me personally known, who being by me

duly sworn, did say that he has read the foregoing

Acknowledgement of Satisfaction of Judgment and

Waiver of Attorney’s Liens, that the facts set forth therein

are true and correct and that he has signed the same as

his free act and will.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

My Commission Expires:

TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000

STATE OF MISSOURI _)

) ss

COUNTY OF JACKSON )

On this 28 day of April, 1998, before me, appeared

Anita P. Robb, to me personally known, who being by me

duly sworn, did say that she has read the foregoing

Acknowledgement of Satisfaction of Judgment and

App. 10

Waiver of Attorney’s Liens, that the facts set forth therein

are true and correct and that she has signed the same as

her free act and will.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed my notarial seal at my office the day

and year last above written.

/s/ Teresa A. Shell

Notary Public

My Commission Expires:

TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000

App. 11

APPENDIX B

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

SIXTEENTH JUDICIAL CIRCUIT, DIVISION 8

HONORABLE LEE E. WELLS, JUDGE

KYONG JU BARNETT, et al.,

Plaintiffs,

TURBOMECA ENGINE

CORPORATION, et al.,

)

VS. ) No. CV93-24644

)

; )

Defendants. )

TRANSCRIPT OF PROCEEDINGS

On Tuesday, the 28th day of April, 1998, the above-

entitled cause came on regularly for hearing before the

Honorable Lee E. Wells, Judge of Division 8 of the Six-

teenth Judicial Circuit, at Kansas City.

APPEARANCES

Mr. Gary C. Robb

Ms. Anita Porte Robb

Robb & Robb, L.L.C.

Attorneys at Law

3900 One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

Attorneys for plaintiffs

Kyong Ju, Jesse, and Mia

Barnett

App. 12

Mr. Craig S. O’Dear

Mr. Nicholas L. DiVita

Bryan Cave, L.L.P.

Attorneys at Law

Suite 3500

1200 Main Street

Kansas City, Missouri 64105

Attorneys for defendants

Katherine A. Calvert, Certified Court Reporter #304

Official Court Reporter, Division 8

Sixteenth Judicial Circuit at Kansas City

APPEARANCES

(Continued)

Mr. John J. Williams, III

Slagle, Bernard & Gorman, P.C.

Attorney at Law

600 Plaza West Building

4600 Madison

Kansas City, Missouri 64112

and.

Mr. Duke W. Ponick, Jr.

Attorney at Law

1100 Main Street

Kansas City, Missouri 64105

Attorneys for plaintiffs

James and Wanda Barnett

Mr. Edward F. Downey

Mr. Douglas E. Nelson

Office of Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

App. 13

APRIL 28, 1998

[p. 3] THE COURT: Good afternoon, everybody.

MR. ROBB: Good afternoon, Your Honor.

THE COURT: We have this afternoon a pro-

posed final judgment for presentation to the court in the

matter of Barnett vs. Turbomeca, et al.

Are the parties ready to proceed?

MR. ROBB: We are ready to proceed on behalf

of plaintiff.

MR. O’DEAR: We are ready to proceed on

behalf of Turbomeca.

THE COURT: Mr. Williams.

MR. WILLIAMS: Of behalf of Jim and Wanda

Barnett, we are ready.

THE COURT: And the attorney general?

MR. NELSON: On behalf of the State of Mis-

souri, we are ready.

THE COURT: Mr. Robb, you may proceed.

MR. ROBB: May it please the court.

We have, immediately before this proceeding in open

court, presented Your Honor with a copy of a proposed

final judgment for execution upon a judgment for these

plaintiffs and each of them in the total amount of

$40,554,745 and no cents.

We believe that the proposed final judgment is a [p.

4] combination of various agreements made between and

App. 14

among the parties over the course of the last two weeks,

and that it also reflects all of the parties’ and their coun-

sels’ respective understanding as to what the court’s rul-

ings have been concerning disputed issues.

I have also before this hearing caused to be circulated

among all counsel of record a copy of the original, which

the court holds, and at this time we would like to go

around counsel to indicate — and I would like to indicate

on behalf of plaintiffs, Kyong Ju Barnett, Jesse Barnett,

and Mia Barnett, that we do believe that the final judg-

ment is in accordance with agreements made between

and among the parties or reflects rulings of this court,

and we would like an announcement on the record with

respect to other counsel.

MR. O’DEAR: Judge, on behalf of the Turbo-

meca defendants, we do acknowledge that this final judg-

ment is in order, which is consistent with the court’s

rulings on these various matters.

MR. WILLIAMS: Your Honor, on behalf of Jim

and Wanda Barnett, I too agree with the matters set forth

in the judgment with one proviso, maybe a couple of

provisos, that being that the judgment recites that [p. 5]

we have withdrawn our motion to dismiss the State and

our motion regarding the denomination of damages for

aggravating circumstances as punitive damages.

We are withdrawing that motion upon the agreement

of the State — or our understanding is the State has agreed

not to appeal or seek any type of appellate relief with

regard to this judgment, and so we withdraw that motion

based upon that understanding; and that upon our

understanding, that we would have the right to reassert

App. 15

those grounds set forth in the motion in the event - in the

very unlikely event we believe something should happen

and this judgment should be set aside.

MR. DOWNEY: Your Honor, on behalf of the

State, I would agree that this proposed order accurately

represents what Your Honor indicated he would rule

yesterday, and the State of Missouri is prepared to live

with Your Honor’s ruling, if that answers Mr. Williams’

questions.

MR. ROBB: If I may proceed, Your Honor. So

that we do not lose sight of what we’re really about here

today, the family has asked that we make a request of the

court for a very brief moment of silence to honor the

deceased, Jim Barnett, Jr., with the court’s permission.

[p. 6] THE COURT: Permission is granted.

MR. ROBB: Thank you, Your Honor.

(Moment of silence.)

MR. ROBB: Your Honor, at this time we would

ask that counsel for the Turbomeca defendants here with

tender for the review and examination of the representa-

tive of the Commerce Bank the instruments which they

seek to satisfy this judgment.

THE COURT: You may.

MR. ROBB: Mr. Simpson, would you identify

yourself for the court.

MR. SIMPSON: Jerry Simpson, officer with

Commerce Bank.

App. 16

MR. ROBB: May he come to this side of the bar,

Your Honor?

THE COURT: He may.

MR. O’DEAR: Sir, if you could come up front,

please. 3

MR. ROBB: Your Honor, we ask Mr. O’Dear

read the amounts into the record.

MR. O’DEAR: First of all, with regard to the

payment to Kyong Ju Barnett, Jesse Barnett, and Robb &

Robb, L.L.C., that total payment is $22,657,073. Nations

Bank advises us that they are not able to do a cashier’s

check above seven figures, so we have three [p. 7] checks.

We have the first check from Nations Bank, Cashier’s

Check No. 2189584 in the amount of $9 million. We have

check — these are all Nations Bank cashier’s checks —- a

Check No. 2189585 also in the amount of $9 million. We

have Check No. 2189587 in the amount of $4,657,073.

Again, those three checks totaling $22,657,073.

The next payment tendered is to Kyong Ju Barnett, as

next friend for Mia Barnett, and Robb & Robb, L.L.C.

That is Check No. 2189580 in the amount of $7,552,356.

The next payment is to the parents, James Barnett, Sr.

and Wanda Barnett, and their attorneys, Slagle, Bernard

& Gorman, P.C. and Duke Ponick, Jr. That’s Check No.

2189581 in the amount of $5,603,117.

And then the final check is to the State of Missouri,

Check No. 2189582 in the amount of $4,742,199.

App. 17

MR. ROBB: Your Honor, first, on behalf of our

clients, Kyong Ju Barnett and Jesse Barnett, we acknowl-

edge the tender of the checks totaling $22,657,073, and we

seek permission of the court to present these to Mrs.

Barnett at this time.

THE COURT: You may.

[p. 8] MR ROBB: Mrs. Barnett, would you stand

up for a moment, and would you say your full name.

MRS. BARNETT: Kyong Ju Barnett.

MR. ROBB: And do you acknowledge receipt of

these three checks with respect to this matter in the total

of $22,657,073?

MRS. BARNETT: Yes.

MR. ROBB: Your Honor, we would ask that we

be able to receive tender of the funds on behalf of Kyong

Ju Barnett as next friend for the minor child, Mia Barnett.

THE COURT: All right.

MR. O’DEAR: That is Check No. 2189580 in the

amount of $7,552,356.

MR. ROBB: Mrs. Barnett, in your capacity as

the next friend for Mia Barnett, do you acknowledge

receipt of the funds to satisfy the judgment on her behalf

in the amount of $7,552,356?

MRS. BARNETT: Yes.

MR. ROBB: You may be seated now.

App. 18

MR. O’DEAR: Your Honor, at this time we

would ask that Mr. Robb and his clients sign the acknowl-

edgments of satisfaction of judgments, which we have

provided to them.

MR. ROBB: We agree to do so, Your Honor.

[p. 9] Your Honor, we’ve now signed and executed

and are in the process of notarizing the acknowledg-

ments.

At this time we would like to present to counsel for

the defendants a fully executed and signed acknowledg-

ment of satisfaction of judgment and waiver of attorneys’

liens signed by Mrs. Barnett on behalf of minor child, Mia

Barnett, and myself, and my law partner on behalf of our

law firm, Your Honor.

MR. O’DEAR: We acknowledge receipt of this

document.

MR. ROBB: Also on behalf of Mrs. Kyong Ju

Barnett, her son, Jesse Barnett, myself, and my law part-

ner, Anita Robb, for our law firm, we present to counsel

for defendant Turbomeca the acknowledgement of satis-

faction of judgment and waiver of attorneys’ liens, Your

Honor.

MR. O’DEAR: Again, we acknowledge receipt

of this document as well.

MR. WILLIAMS: If you will, we'll dispense

with this ceremony of doing it in this fashion. I think Mr.

and Mrs. Barnett are keeping in mind the reason that

we're here in the first place was occasioned by the death

of their son. They have executed the acknowledgment,

—_—_—_—_—_———

App. 19

and I think we can handle this in the routine fashion as

far as exchanging the [p. 10] checks.

THE COURT: You want the acknowledgement

on the record of course?

MR. O’DEAR: Yes.

Your Honor, at this time the Turbomeca defendants

would tender to Mr. Williams and Mr. Ponick on behalf of

their clients, James Barnett, Sr. and Wanda Barnett, a

check for $5,603,117, Check No. 2189581.

We also acknowledge on the record the receipt of an

acknowledgment of satisfaction of judgment and waiver

of attorneys’ liens signed by James Barnett, Sr. and

Wanda L. Barnett, Duke Ponick, Jr., and John Williams for

himself, and Slagle, Bernard & Gorman, L.L.C. Is that

correct, Mr. Williams?

MR. WILLIAMS: That's right. It’s a professional

association but I think we’ve done all right.

MR. O’DEAR: Your Honor, the last check that

we have is to the State of Missouri.

Whoever is going to accept this on behalf of the State

of Missouri, could you identify yourself?

MR. NELSON: Douglas E. Nelson for the State

of Missouri, Your Honor.

Teresa, if you would be so kind to notarize ours, I

would appreciate it.

[p. 11] MR. O’DEAR: Mr. Nelson, if I could, I

know you're an officer of the court, so I won't put you

App. 20

under oath, but I have a few questions. I want to tie up

the authority issue.

You've stated that your name is Douglas E. Nelson; is

that correct?

MR. NELSON: That is correct.

MR. O’DEAR: Your position is what?

MR. NELSON: I’m assistant attorney general

with the State of Missouri.

MR. O’DEAR: And you then work for the attor-

ney general, Mr. Nixon?

MR. NELSON: That’s correct.

MR. O’DEAR: Are you authorized by the attor-

ney general of the State of Missouri to represent the

interest of the State of Missouri in this matter?

MR. NELSON: Yes, I have been

Your Honor, I kind of feel like I’m under oath. As an

officer of the court, I’ve been authorized, along with Mr.

Downey, to sign the acknowledgment and satisfaction

and accept the check for the State of Missouri.

I kind of feel like I am on the witness stand, although

I’m not on the stand. I made that acknowledgment to Mr.

O’Dear that we have the [p. 12] authorization of our

office to sign this and accept that-check on behalf of the

State.

MR. O’DEAR: That’s what I wanted to confirm.

And would you identify your partner here, Mr.

Downing?

App. 21

MR. NELSON: Edward F. Downing

MR. O’DEAR: His position is?

MR. NELSON: Also assistant attorney general

for the State of Missouri.

MR. O’DEAR: He’s also authorized by the

attorney general of the State of Missouri to represent the

State’s interest in this matter?

MR. NELSON: That’s correct.

MR. O’DEAR: You understand that we are ten-

dering to the State of Missouri a cashier’s check in the

amount of $4,742,199, which is Check No. 2189582 in full

and final satisfaction of any interest the State has or may

have in this matter; is that correct?

MR. NELSON: That is correct.

MR. O’DEAR: You are accepting that on that

basis?

MR. NELSON: Yes, I am.

MR. O’DEAR: We acknowledge on the record

receipt of the acknowledgment of satisfaction of judg-

ment and waiver of attorneys’ liens signed by the [p. 13]

State of Missouri by Douglas E. Nelson, assistant attorney

general of Missouri.

MR. ROBB: We have a couple other matters.

One with respect to the appeal bond. We acknowledge

receipt of the motion by counsel for Turbomeca to release

the appeal bond.

What we have offered to do is immediately when the

officers of the Commerce Bank notify my office that the

App. 22

funds have cleared and on deposit in our firm’s trust

account, we will immediately cause the phone call to be

made to Mr. O’Dear informing him of that, and we’ll also

advise the court, and we ask that this court not sign the

order releasing the appeal bond until those phone calls

are made, Your honor.

THE COURT: I will issue the order relinquish-

ing the appeal bond when I have been advised to do so

by Mr. O’Dear, who is the attorney for the defendants,

and I'll accept your word on that.

MR. O’DEAR: Okay.

MR. WILLIAMS: I take it you are waiting until

all the checks have cleared?

THE COURT: Yes, until all checks have been

cleared.

MR. DiVITA: Your Honor, may we present the

order to the court?

[p. 14] THE COURT: Yes.

MR. ROBB: Another administrative matter. We

ask counsel for defendant to supply us with a copy of the

executed satisfactions of judgment.

MR. O’DEAR: We would be happy to do so,

and we'll make copies as soon as the hearing is over.

I would like to say too for the record, I’m presuming

everybody is going to go to the bank this afternoon.

There shouldn’t be any reason why anybody doesn’t have

the money by this afternoon.

App. 23

MR. ROBB: On behalf of our client, that’s our

intention, Your Honor.

MR. WILLIAMS: We are too, but I’m unfamiliar

with the banking rules for clearing these checks.

MR. O’DEAR: All right.

MR. ROBB: Your Honor, on behalf of our cli-

ents, Kyong Ju, Jesse, and Mia Barnett, we ask this court

to sign the final judgment indicating that there has been

satisfaction of that judgment in full, and then release and

discharge the defendants other than the payment of court

costs as reflected in the document.

THE COURT: Judgment has been executed and

the costs will be taken care of by the cost department.

MR. WILLIAMS: Your Honor, if I may, I take it

[p. 15] the defendants have approved the form and con-

tent of the satisfaction of judgment since you supplied it

to us; is that correct?

MR. O’DEAR: Oh, yes. Yes.

THE COURT: Are you going to file those with

the court?

MR. O’DEAR: Yes.

THE COURT: I want to thank everybody for the

cooperation that’s been shown in obtaining a final closure

on this matter. It’s been exceptional and I’ve appreciated

all of the help that was received from all sides, and I’m

delighted we’re finally able to conclude the matter.

App. 24

Thank you.

We'll be in recess.

(Adjournment.)

ASB OTT

Se ee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.