Opposition Brief — Union Pacific Railroad Co. v. Barber

(3)

(3

NO. 04-47

IN THE

Supreme Court of the United States

UNION PACIFIC RAILROAD CoO.,

Petitioner,

v.

CHRIS BARBER, CLAUDETTE BARBER, AND ALLIED WASTE

INDUSTRIES, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

BRIEF IN OPPOSITION

B. Michael Easley Robert L. Pottroff

EASLEY, HUDSON & HOUSEAL Counsel of Record

P.O. Box 1115 Norbert Marek

510 E. Cross St. MYERS, POTTROFF & BALL

Forrest City, AR 72336-1115 320 Sunset Avenue

Manhattan, KS 66502-3757

Gene Ludwig (785) 539-4656

Chris Kramer

LUDWIG LAW FIRM

8501 Pinnacle Valley Rd.

Little Rock, AR 72223

QUESTIONS PRESENTED

1. Whether—in the face of Union Pacific’s concession

that “a ratio of five times the compensatory award is...

within constitutional bounds in a personal injury case”—the

Arkansas Supreme Court erred in holding that the punitive

damages award here conformed to due process.

2. Whether the Arkansas Supreme Court erred in

rejecting Union Pacific’s sufficiency of the evidence

challenge to the jury verdict below.

(i)

TABLE OF CONTENTS

Page

ERIE UE By OMIM FORD cicscanscsnssnannsnnnnnnntonssatsunsannsnbnenssonnnnnes i

RIED PE FAS BNE EGO wsccssescesnccesovesrnisonsevscsnscansanconsn ili

COUNTER STATEMENT OF THE CASE...............cc0000 1

REASONS FOR DENYING THE WRIT OF

ESE a CE Re TRE ae 7

De UNION PACIFIC’S PRIMARY

CHALLENGE TO THE PUNITIVE

DAMAGES AWARD WAS WAIVED

BELOW—AND PROPERLY SO IN VIEW

OF THE SOUNDNESS OF THE TRIAL

SRA A TAFE sanscanesencisaciesanchiannntassnsnsiincibassadensiia 7

A. Petitioner’s Principal Argument

PERE FUP OE BORN vscissecnsersecccesssnscsscnsesanes 8

B. Petitioner Has In Any Event

Failed To Identify Any Split In

Authority Involving The Opinion

AREER EE eT OO 10

C. The Arkansas Supreme Court

Properly Applied The State Farm

ii ihibisnssaicdeiiienaisiteiraschinsahinieninnnien 12

Il. THE ARKANSAS SUPREME COURT

PROPERLY RESOLVED UNION

PACIFIC’S CHALLENGE TO THE

SLOW ORDER EVIDENCE AS IT WAS

PRESENTED BELOW.........scscssssossessscssssesssees 20

rar ITT etosihatsnstetisahindewcinsiisasndeandissediéniconsintensanenipnenets 28

(ii)

ili

TABLE OF AUTHORITIES

CASES

Page(s)

Union Pac. R.R. Co. v. Barber, No. 03-57, 2004 WL

362525 (Ark. Feb. 26, 2004) ......ceccccssssrscesessessesenseesees passim

Adams v. Robertson, 520 U.S. 83 (1997) .......cccsssseseseees 9, 16, 26

Advocat, Inc. v. Sauer, 111 S.W.3d 346 (Ark. 2003),

cert. denied, 124 S.Ct. 532 (20038) .........c.ssceeeee 10, 12, 14, 24

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ....... passim

Board of Dir. of Rotary Int'l v. Rotary Club of

I Ne Bi Ge IEE D catestetcsestcntcesneccnssnsenenscncetsseennnene 9

Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2008)... 12

Brown v. Missouri Pac. R.R., 703 F.2d 1050 (8th

TEMA aoe eo ete 16, 19, 20

Brown v. Western Ry. of Ala., 338 U.S. 294 (1950).............04 25

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

cea odaciedc chica cena aca caeeeneciedaaiblabbnineiminntincneenen 21

CSX Transp., Inc. v. Palank, 743 So. 2d 556 (Fla.

Dist. Ct. App. 1999), cert. denied, 531 U.S. 822

SETI ciscibUacihaslichee uae bldanenninisaniinihniiiai 19

Cooper Indus., Inc. v. Leatherman Tool Group,

FO Te Ce ME iieinciitniaietrinnnnemmniians 11, 13

Copley v. Bax Global, Inc., 97 F. Supp. 2d 1164

OB yO I eae eT

Felder v. Casey, 487 U.S. 181 (1988)...........sscscessesesreeecees 25, 26

Franklin v. State, 240 S.W. 708 (Ark. 1922) ...........ccsscessseeees 26

Griffin v. United States, 502 U.S. 46 (1992)......c.ccccscsescseseees 26

Harold McLaughlin Reliable Truck Brokers, Inc. v.

Coos, SER S. W 2b SBT GATE. 2BGG) a ccnseccccscccsersecrcssecssoneseesens 10

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) oe eeeeeeees 8

Howlett v. Rose, 496 U.S. 356 (1990)............ccsccssscsssseeseees 25, 26

In re Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001)................ 11

Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320

(llth Cir. 1999), cert. denied, sub nom.

Combustion Eng’g, Inc. v. McGill, 528 U.S. 931

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Lambert v. Fulton County, 97 F. Supp. 2d 1380

RULED. CR. SIRI nxiicsiensnnesnisanasinsieleghiniaipdakamaiamaia aaa ana 12

Missouri Pac. R.R. Co. v. Arkansas Sheriff's Boys’

Ranch, 655 S.W.2d 389 (Ark. 1988)......ccccsssessssecsssesscseeees 10

Missouri Pac. R.R. Co. v. Mackey, 760 S.W.2d 59

CASE, BOIED cninrsoninceenslbisscnisiitiniiipisdesidaaaadeiiteamtan ann teme 13

Nobles v. Casebier, 938 S.W.2d 849 (Ark. 1997)...cccccccccsssssceee 20

Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 (2000) ........0... 21

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

’EIPIPE } ~enemsemsensosesininsinnesnnsaeunasiansineessillpmaiinanasdelaia ia aan 15

Pannell v. State, 897 S.W. 2d 552 (Ark. 1995) ........cccsscee. 25, 26

Pearson v. Henrickson, 983 S.W.2d 419 (Ark. 1999)....c..00... 13

Privett v. Union Pac. R.R. Co., No. 3:99cev00110

(BRR. AM. Plt. TTD BED... scvisssisininesnnieadinneatiencumead 17

Register v. Rus of Auburn, 193 F. Supp. 2d 1273

CREED. RMR, SED iiensctsniniiinceanaitiniabeaienie nar 12

Richardson v. Marsh, 481 U.S. 200 (1987)....c..ccccssecssssssesseesees 13

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) -..cccccsccssescee 9

State Farm Mut. Auto. Ins. Co. v. Campbell, 538

Ses IN GI iccesiscsthonnetieeiniadeinlasiiniiian tam ect ne passim

Stevenson v. Union Pac. RR. Co., 204 F.R.D. 425

(E.D. Ark. 2001) affd in relevant part, 354 F.3d

Se ee Si i scthinninincnateeennbibiadtiieineiieta aaa 17

Stone v. CSX Transp., Inc., 37 F. Supp. 2d 789 (S.D.

Wis ic i csersiintinininnatatinnniediciieu enema cae ee 21

Union Pac. R.R. Co. v. Sharp, 952 S.W.2d 658 (Ark.

| a eT SENET 6, 24, 26

United States v. United Foods, Inc., 583 U.S. 405

SnD \isesessntenessinicessneneiacipesntieatiniieaiiiaaiiagiicaicidaaie eee 9

United States E.E.0.C. v. W & O, Inc., 213 F.3d 600

Rae Sls va ncisniteieaeianeantaincesindiamidtiiibliain teh taiett haat’ 12

W.M. Bashlin Co. v. Smith, 643 S.W.2d 526 (Ark.

ED sciccessniehsesiaesnibiciiclinilbiiaha aati 26

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES

45 U.S.C. § 434, now codified as amended at 49

CT BAS. 0 IIS cnccitinnmscmninmandmommammamamnte 21

BO CF ED. 5 GIGS cusiscsviitrsiniodiilnaamnaiah 3

BOF TR, 0 BUD ccointiiniiteiincivivninmicinimiammnannnaai 3

Pieth, Coe Aime. § FE- TBS eneccssssrscessisssessesersncsdieratetnsneteeenanans 4

Ark. S. Ot. BR. 4-2(7)........cccrcosorcescorescesssccscesseosensecsecsnsosssosesenssseses 23

Respondents Chris and Claudette Barber (“the

Barbers”) oppose the Petition for a Writ of Certiorari.

Petitioner Union Pacific Railroad Company (“Union Pacific”

or “the railroad”) seeks to obtain review of multiple legai

issues that it did not properly preserve or present to the

Arkansas Supreme Court. Most importantly, the railroad

conceded below that the ratio of compensatory to punitive

damages awarded in this case fell within the limits

permitted by this Court’s precedent, but now offers

argument entirely contrary to its prior position as the

cornerstone of its due process challenge. In addition, the

railroad attempts to recast its challenge to the sufficiency of

evidence before the Arkansas court into a new preemption

argument—one that it does not even claim presents a

question on which there is any division of authority among

the lower courts. Because Petitioner expressly waived

below the due process argument that it now presses most

vigorously—and because, as to both issues raised by

Petitioner, the Arkansas Supreme Court’s application of

settled principles to the facts was correct and implicates no

disagreement among the lower courts—the Petition should

be denied.

COUNTER STATEMENT OF THE CASE

Factual Background

On January 19, 1998, an eastbound Union Pacific train

struck a garbage truck driven by Charles Rolfe at County

Road 123 in St. Francis, Arkansas. Rolfe died at the scene

from his injuries, and his passenger, Respondent Chris

Barber, suffered partial paraplegia, multiple fractures of his

skull and spine, ruptured disks at C6 and C7 requiring

fusion, permanent brain damage, multiple ankle breaks and

rib fractures, and various other injuries. Barber was

released after two months in a hospital and rehabilitation

center, and was given a 70% permanent impairment rating.

He suffers from continuing pain (the touch of long pants or

even bed sheets to his legs evokes a searing sensation) and

bowel and bladder problems, and will require medication,

physical therapy, and medical treatment for the rest of his

life. Now age 39, he cannot walk unassisted and cannot

work.

Evidence at trial established that the crossing’s

conditions were so hazardous that four “near-misses”

involving cars and smaller trucks had occurred there in the

year prior to the Barber accident. Abst. 49-50, 56-58 (Susan

and Vernon Thweatt); Abst. 59-60 (Troy Meredith); Abst.

61-62 (two near misses involving Ray Thweatt). At 50 feet

from the crossing, vegetation was so dense that motorists

could see only about 63 feet to the east and 270 feet to the

west, even though Arkansas law required 1000 feet of

visibility in both directions. Abst. 153-155. To get a clear

view down the tracks, drivers had to inch forward into the

zone of danger and tended to focus their attention to the east

because the view was most restricted in that direction.

Abst. 44-47, 51, 538, 57, 59-61, 75, 154-156, 159, 163.

Moreover, large trucks often needed 15 to 20 seconds to

clear the tracks because the crossing was humped 53 inches

above the highway, a condition that was contributed to by

Union Pacific’s maintenance practices. Abst. 45, 61, 155-156,

4-SAB, 5-SAB. Chuckholes, deteriorated ties, and problems

with rails sticking up above the surface of the crossing also

made passage rougher and contributed to the hazardous

nature of the crossing. Abst. 59, 78, 83, 113-115, 120, 2-SAB.

Prior to the accident, Willie Savage, foreman of a Union

Pacific maintenance gang, considered the crossing so

hazardous that he personally drove his supervisor to the site

to point out the problems. The supervisor responded, “We

can’t do nothing about that, because we are getting paid to

put in ties. We ain’t getting paid to fix crossings.” The

supervisor did order a flagman to be posted temporarily to

ensure that workers and equipment could cross safely, but

nothing was done to fix the problems. Abst. 90-91.

Similarly, the local mayor and a garbage truck driver for

another company testified about making, collectively, at

least a dozen complaints about the crossing to Union Pacific

employees. They contacted individuals ranging from Union

Pacific vice presidents and state crossing safety coordinators

to 1-800 hotline operators, without receiving any response.

Abst. 76-77, 83-85. Union Pacific received a bid from

Tweedy Contractors in 1997 to clear vegetation from the

crossing for $1,465—two to three times as much as for

crossings on other Union Pacific subdivisions in Arkansas—

but never funded the project. Abst. 117-118; Add. 527.

During discovery, Union Pacific failed to turn over

other evidence that certainly would have reflected its

knowledge of hazardous conditions and election to ignore

those problems prior to the accident, as well as a voice tape

of the train crew’s call to dispatchers immediately after the

accident. Although the railroad preserves and uses voice

tapes to support its positions in litigation, the tape in

question was destroyed. Track inspection records were also

destroyed three months after the Barbers’ counsel filed a

discovery request for them. Finally, although “slow orders”

that would have reflected maintenance needs would

normally have been available by computer, Abst. 174, the

railroad did not produce them in response to the Barbers’

discovery requests. Instead, the Barbers’ investigators

found evidence that slow orders had been imposed on the

crossing mixed in with documents produced in connection

with another case.

Slow orders instruct trains to reduce speed below normal federal

requirements. They can be issued when a track is out of compliance with

federal track regulations, remaining in place until a defect is fixed, or for

reasons such as maintenance work being performed in a particular area.

49 C.F.R. §§ 213.5, 213.9. Accordingly, slow orders identify maintenance

needs and appropriate corrective actions.

Other evidence from Union Pacific employees and

experts suggested that the railroad’s repeated failure to

respond to complaints about the crossing prior to the

accident was due to a deliberate decision not to spend money

on maintenance, Abst. 91 (Willie Savage testimony that

“What I learned about working for Union Pacific and

complaining about vegetation was, do what you were told

and ask no questions.”), or improvements to crossings that

are not covered by federal and state enhancement programs.

See Abst. 143-144 (testimony by Union Pacific’s Manager of

Industry and Public Projects for Arkansas that “I suppose

somebody back in Omaha made a decision that they weren’t

going to independently fund upgrades in Arkansas. I don’t

know why the railroad won’t spend money to upgrade

crossings like County Road 123.”); Abst. 128, 131 (testimony

of expert Harvey Levine based on review of various railroad

documents that “For years now, it has been traditionally

Union Pacific’s policy that that federal program is solely

responsible for determining the safety needs at those

crossings and then providing the funding to install safety

devices.”). Dr. Levine, a railroad economist, also testified

that Union Pacific estimates the claims that it will pay out

every year, shares the information with the Association of

American Railroads, and factors those estimates into its

budgeting process. Abst. 132.

Procedural Background

The Barbers filed a complaint against Union Pacific,

train engineer L.E. Piper, Jr., and Asplundh Brush Control

Company on October 19, 1998. They alleged that the

accident was caused by Union Pacific’s failure to control

vegetation within its right-of-way in violation of Arkansas

Code § 28-12-201, failure to alleviate an abnormally

dangerous crossing, failure to sound audible warning devices

properly, failure to keep a proper look out, and operating the

train at an excessive speed given the crossing’s conditions.

The Barbers later nonsuited the case against Asplundh. On

n

February 12, 2001, the Barbers amended their complaint to

request punitive damages as well as to allege that Union

Pacific negligently failed to maintain the track to the

Federal Railroad Administration’s Class 4 standards and to

issue a slow order imposing a speed restriction over the

crossing.

After a ten-day trial, the jury found in favor of the train

engineer, but returned a general verdict finding Union

Pacific guilty of negligence. The jury also returned a special

interrogatory finding that punitive damages were warranted

because the railroad had acted with malice or such reckless

indifference to probable injury that malice could be inferred.

The jury awarded $5 million in compensatory damages to

Mr. Barber and $100,000 to his wife; upon further

deliberations, the jury assessed $25,000,000 in punitive

damages against the railroad.

Upon appeal to the Arkansas Supreme Court, Union

Pacific asserted that the trial court erred in denying its

motion for a directed verdict on the claim of negligent failure

to issue a slow order and the existence of an abnormally

dangerous crossing as not supported by substantial

evidence; challenged the punitive damages award as

excessive under both state common law and federal due

process; and asserted a number of other issues that are not

raised in its Petition for a Writ of Certiorari. Concerning

federal due process, the railroad’s two-page argument

asserted briefly that the punitive damages award should be

struck down as (1) disproportionate to the reprehensibility

of its conduct and the fines imposed under Arkansas statute;

and (2) resting on evidence of Union Pacific’s national

policies rather than conduct within the state of Arkansas.

Union Pacific conceded, however, that the award was not

disproportionate to the compensatory damages awarded in

the case. Abst. 232-233.

The Arkansas Supreme Court rejected both of Union

Pacific’s contentions. In reviewing the directed verdict

challenge, the court noted that the railroad did not dispute

the sufficiency of evidence supporting the general verdict or

any of the jury instructions on legal grounds, but rather

challenged only the sufficiency of evidence underlying two of

several theories of negligence. It relied on Arkansas

precedent to hold that a challenge to the sufficiency of

evidence supporting a particular theory of negligence will be

rejected where evidence supporting other theories was

sufficient to uphold the verdict. Union Pac. R.R. Co. v.

Barber, No. 03-57, 2004 WL 352525 at 9, Pet. App. 19a-21la

(Ark. Feb. 26, 2004) (citing Union Pac. R.R. Co. v. Sharp,

952 S.W.2d 658 (Ark. 1997)). Regarding punitive damages,

the court held that the award did not shock the conscience

under state standards and met federal due process

requirements because the degree of reprehensibility was

high, single-digit ratios between compensatory and punitive

damages are generally permissible, and the award was

reasonably comparable to the maximum aggregate federal

and state fines that could be imposed for each day that

Union Pacific had controlled the tracks up to the January

1998 accident.

Union Pacific then filed a petition for rehearing

asserting that its slow order challenge had been the

equivalent of a challenge to the jury instructions. The

Arkansas Supreme Court denied the petition without an

opinion.

REASONS FOR DENYING THE

WRIT OF CERTIORARI

I. UNION PACIFIC’S PRIMARY

CHALLENGE TO THE PUNITIVE

DAMAGES AWARD WAS’ WAIVED

BELOW—AND PROPERLY SO IN VIEW

OF THE SOUNDNESS OF THE TRIAL

COURT’S RULING.

This Court explained in BMW of North America, Inc. v.

Gore, 517 U.S. 559, 568 (1996), and State Farm Mutual

Automobile Insurance Company v. Campbell, 538 U.S. 408,

416 (2003), that the Fourteenth Amendment’s Due Process

Clause forbids the imposition of “grossly excessive” punitive

damages by state courts. Courts reviewing punitive

damages awards must therefore not only assess the nature

and strength of state interests in deterring the conduct at

issue, but also the proportionality of the damages in

comparison to (1) the degree of reprehensibility of the

defendant’s misconduct; (2) the disparity between the actual

or potential harm suffered by the plaintiff and the punitive

damages awarded; and (3) the difference between the

punitive damages awarded and civil penalties authorized or

imposed in comparable cases. State Farm, 538 U.S. at 418;

Gore, 538 U.S. at 568, 575.

The courts below correctly and faithfully applied these

principles. The alleged splits between the Arkansas

Supreme Court and the Ninth and Eleventh Circuits are

illusory—the cases are easily reconciled on their facts and

legal holdings. And in any event, the primary basis on which

certiorari is sought—the 5-to-1 ratio between the punitive

award and compensatory damages—was waived in the

Arkansas Supreme Court. In short, the due process issue

was properly decided below, does not involve any division of

authority, and in any event was in large part waived

below—making this case a singularly improper vehicle to

“further illuminate the character of the standard that will

identify unconstitutionally excessive awards of punitive

damages.” Pet. 11 (quoting Gore, 517 U.S. at 568 (quoting

Honda Motor Co. v. Oberg, 512 U.S. 415, 420 (1994)))

(internal quotation marks omitted).

A. Petitioner’s Principal Argument Was

Waived Below.

The primary argument advanced in Union Pacific’s

Petition (Pet. 2, 10-11, 18-17) is its assertion that the

Arkansas Supreme Court failed to heed the statement in

State Farm that “({w]Jhen compensatory damages are

substantial, then a lesser ratio [of punitive damages],

perhaps only equal to compensatory damages, can reach the

outermost limit of the due process guarantee.” 538 U.S. at

425.

The railroad, however, flatly waived this argument

below by conceding in its opening brief to the Arkansas

Supreme Court that “a ratio of five times the compensatory

award is ... within constitutional bounds in a personal injury

ease.” Abst. 232 (citing State Farm, 538 U.S. at 425).

Accordingly, Union Pacific contended only that the punitive

award in this case violated “the first and third Gore criteria.”

Abst. 232. Union Pacific never argued—or even

suggested—to the Arkansas Supreme Court that the ratio of

compensatory to punitive damages raised any question at all

under this Court’s decision in State Farm. Accordingly, in

-~ the face of the railroad’s concession on this point, the

Arkansas Supreme Court’s opinion devoted only a few

cursory sentences to the ratio factor; the court noted that

the 5-to-1 ratio was consistent with State Farm’s guidance

that single-digit ratios usually comply with due process

requirements, but did not address this Court’s discussion of

1-to-1 ratios.

The Petition essentially sandbags the Arkansas

Supreme Court, contending that the decision below should

be reversed because the court should have interpreted State

merereermeeeemaecmesatiacsieiitiiaiimiiaiiiiiiiieiieiiiae

Farm as limiting damages to a 1-to-1 ratio—a ground

expressly disclaimed below. Permitting the railroad to

advance that argument in this Court is directly contrary to

traditional practice: “Although in some instances [the

Supreme Court has] allowed a respondent to defend a

judgment on grounds other than those pressed or passed

upon below, it is quite a different matter to allow a

petitioner to assert new substantive arguments attacking,

rather than defending, the judgment when those arguments

were not pressed in the court whose opinion we are

reviewing, or at least passed upon by it.” United States v.

United Foods, Inc., 533 U.S. 405, 416-17 (2001) (citation

omitted). See also, e.g., Sprietsma v. Mercury Marine, 537

U.S. 51, 56 n.4 (2002) (argument not raised below is waived).

Indeed, under “well settled” doctrine animated by

federalism concerns, this Court does not review the final

judgments of state courts unless “the record as a whole

shows either expressly or by clear implication that the

federal claim was adequately presented in the state

system.” Board of Dir. of Rotary Int'l v. Rotary Club of

Duarte, 481 U.S. 537, 549-50 (1987) (citation omitted).

Where a state supreme court’s opinion is silent on a federal

issue, this Court properly assumes that the issue was not

properly presented and will not grant a writ of certiorari

unless the petitioner demonstrates that the state court had

““a fair opportunity to address the federal question that is

sought to be presented.”” Adams v. Robertson, 520 U.S. 83,

86-87 (1997) (per curiam) (citation omitted) (dismissing writ

of certiorari as improvidently granted). It thus follows a

fortiori that where the ground advanced in the petition was

expressly disclaimed below, the case is an improper one for

certiorari.

Accordingly, even if there were disagreement in the

lower courts about the application of the Gore/State Farm

analysis (and, as demonstrated below, there is not), this case

does not present this Court with a suitable vehicle to

10

address these issues. If the Court were to decide to revisit

the constitutional issues addressed in Gore and State Farm,

it would be far more appropriate to do so in a case in which

the constitutional challenge was fully and fairly presented to

the courts below. This case certainly presents no

circumstances that would justify a departure from the

Court’s traditional practice of declining to review an issue

that was explicitly conceded below.

B. Petitioner Has In Any Event Failed To

Identify Any Split In Authority Involving

The Opinion Below.

The Arkansas ‘Supreme Court’s decision implicates no

split in authority among the lower courts.

Union Pacific misconstrues a brief reference to state

common-law standards in the conclusion of the Arkansas

court’s excessiveness analysis, see Barber, 2004 WL 352525

at 16-17, Pet. App. 36a,’ in a vain attempt to portray the

court’s federal due process analysis as conflicting with the

Union Pacific points to a statement that “we will not substitute our

judgment for that of the jury” located in a standalone paragraph at the

end of the court’s excessiveness analysis. Although the court admittedly

did not provide a clear transition into the paragraph, the passage appears

to respond to Union Pacific’s separate argument that the punitive

damages award violated state standards as well as federal. Compare

Abst. 231-232 (briefing on state issues), with Abst. 232-233 (federal). The

paragraph applies a state “shock the conscience” standard as articulated

in two cases that contain no federal analysis whatsoever. Harold

McLaughlin Reliable Truck Brokers, Inc. v. Cox, 922 S.W.2d 327 (Ark.

1996); Missouri Pac. R.R. Co. v. Arkansas Sheriff's Boys’ Ranch, 655

S.W.2d 389 (Ark. 1983). The third case cited in the paragraph struck

down a punitive damages award separately under both state and federal

standards. Advocat, Inc. v. Sauer, 111 S.W.3d 346, 357-59 (Ark. 2003)

(state “shock the conscience”), 359-63 (federal due process), cert. denied,

124 S.Ct. 532 (2003).

11

Ninth Circuit’s opinion in In re Exxon Valdez, 270 F.3d 1215

(9th Cir. 2001). In reality, both courts recognized and

followed this Court’s holding that the constitutional due

process analysis under the Gore/State Farm factors should

be performed using de novo review. See Cooper Indus., Inc.

v. Leatherman Tool Group, Inc., 582 U.S. 424, 435 (2001)

(“(T}he courts of appeals must review the proportionality

determination ‘de novo’... .”); In re Exxon Valdez, 270 F.3d

at 1240 (“(C]ourts of appeal should apply a de novo standard

of review ....”” (citation omitted)); Barber, 2004 WL 352525

at 14, Pet. App. 31a (“A Gore analysis is to be undertaken by

the appellate court de novo.”). The passing reference to

state standards is irrelevant to the court’s five-page analysis

of the Gore/State Farm elements, which accorded no

deference to the jury or the trial court. See Barber, 2004

WL 352525 at 14-16, Pet. App. 31a-36a; infra Section I.C.

In addition, the railroad distorts the holding of

Johansen v. Combustion Engineering, Inc., 170 F.3d 1320

(11th Cir. 1999), cert. denied, sub nom. Combustion Eng’g,

Inc. v. McGill, 528 U.S. 931 (1999), which does not apply to

the facts of this case. Johansen merely noted that where an

actual fine is imposed for the same conduct that is at issue in

civil litigation, that fine is generally “the most relevant

comparison” for purposes of the third Gore/State Farm

factor. Id. at 1337 & n. 34. And even when such a fine is

imposed and adequately reflects the strength of state

interests, Johansen did not hold that the penalty rigidly caps

punitive damages. Instead, the court upheld a $4.35 million

punitive damages award in the context of a $10,000 fine and

$47,000 in compensatory damages because “the Georgia

statutes provided fair notice . . . that [the defendant] might

be subject to a substantial penalty.” Jd. at 1339. Since no

penalty was imposed in this specific case, the Arkansas

Supreme Court’s decision to uphold the award in the face of

potential state and federal penalties was consistent with

both Johansen and this Court’s directive to evaluate the

amount of punitive damages in light of the “civil penalties

12

authorized or imposed in comparable cases.” Gore, 517 U.S.

at 575.’ See also infra Section I.C (discussing the merits).

C. The Arkansas Supreme Court Properly

Applied The State Farm Analysis.

Even were it appropriate for this Court to take the

extraordinary step of granting certiorari to review a

factbound claim of error in the application of settled law, see

S. Ct. R. 10, Union Pacific’s various claims of error are

wrong. The Arkansas Supreme Court has carefully applied

the Gore/State Farm analysis in the past to reduce excessive

punitive damages awards, see Advocat, Inc. v. Sauer, 111

S.W.3d 346 (Ark. 2003), cert. denied, 124 S.Ct. 532 (2003). In

contrast, the Arkansas Supreme Court properly concluded

that such action was not warranted on the facts of this case.

To begin with “the most important indicium of the

reasonableness of a punitive damages award,” Gore, 517 U.S.

at 575, the degree of reprehensibility of Union Pacific’s

conduct was significant. Most of the reprehensibility factors

identified in State Farm are present in this case: (1) the

harm caused was severe physical injury and death, rather

than mere economic damage; (2) the railroad’s conduct

evinced such a reckless indifference to public health and

safety as to warrant the inference of intentional malice; and

(3) the railroad’s conduct involved the failure to respond to

more than a dozen warnings by its own employees, local

. Indeed, subsequent Eleventh Circuit cases have applied an analysis

similar to what the Arkansas Supreme Court used in Barber. See United

States E.E.0.C. v. W & O, Inc., 213 F.3d 600 (11th Cir. 2000), Bogle v.

McClure, 332 F.3d 1347 (11th Cir. 2003), Copley v. Bax Global, Inc., 97 F.

Supp. 2d 1164 (S.D. Fla. 2000), Lambert v. Fulton County, 97 F. Supp. 2d

1380 (N.D. Ga. 2000), Register v. Rus of Auburn, 193 F. Supp. 2d 1273

(M.D. Ala. 2002).

13

residents, and public officials that the crossing presented a

severe hazard. See 538 U.S. at 419. Particularly in light of

the fact that Union Pacific posted flagmen to ensure that its

own employees and equipment could use the crossing safely

but failed to afford any protections to the motoring public,

the jury and the Arkansas Supreme Court quite reasonably

concluded that the railroad’s conduct was “indicative of a

high degree of reprehensibility.” Barber, 2004 WL 352525 at

15, Pet. App. 33a.‘

As for the proportion of punitive to compensatory

damages, the Arkansas court properly noted that a ratio of

slightly less than 5-to-1 was consistent with this Court’s

general guidance before moving on to focus on the third

Gore/State Farm factor. Id. (“Most recently, the Supreme

Court has held that ‘(sJingle-digit multipliers are more likely

' Union Pacific asserts that the conduct at issue in the case “even

viewed in its worst light{] was barely more culpable than simple

negligence,” Pet. 14, but ignores the fact that under the jury instructions

and Arkansas law, the jury could only award punitive damages if it found

that the railroad acted with malice or with such reckless disregard for

probable injury that malice could be inferred. Tr. 6550-6551. See also

Missouri Pac. R.R. Co. v. Mackey, 760 S.W.2d 59, 63 (Ark. 1988) (noting

that punitive damages must be based on a finding that the defendant

acted intentionally or “with such conscious indifference to the

consequences of [its] acts that malice may be inferred,” and emphasizing

that gross negligence is not sufficient). It must necessarily be presumed

that the jury obeyed those instructions, see Richardson v. Marsh, 481 U.S.

200, 206 (1987) (describing “the almost invariable assumption of the law

that jurors follow their instructions”); Pearson v. Henrickson, 983 S.W.2d

419 (Ark. 1999) (same), and the jury’s factual findings as to motive are

entitled to deference. Cooper Indus., Inc. v. Leatherman Tool Group,

Inc., 582 U.S. 424, 440 & n.14 (2001). Indeed, the Petition concedes this at

another point. See Pet. 26-27 & n.17 (“Presumably any facts explicitly

found by the jury on a special verdict form qualify for deference, as do

facts necessarily implied by the jury’s verdict on liability or its finding

authorizing punitive damages.”).

14

to comport with due process, while still achieving the State’s

goals of deterrence and retribution ... .”’ (quoting State

Farm, 538 U.S. at 425)).°

Even if Union Pacific had not waived reliance on State

Farm’s discussion of 1-to-1 ratios, the Arkansas court would

have been fully justified in upholding the award. State

Farm suggested that where compensatory damages are

“substantial,” “a lesser ratio [of punitive damages], perhaps

only equal to compensatory damages” may _ reach

constitutional limits, but immediately went on to note that

“(t]he precise award in any case, of course, must be based

upon the facts and circumstances of the defendant’s conduct

and the harm to the plaintiff.” 538 U.S. at 425 (emphasis

added). Accordingly, the Court’s analysis of whether the $1

million compensatory award at issue in State Farm was

“substantial” focused on case-specific factors such as the

nature of the plaintiffs’ injuries and the fact that punitive

damages would be largely duplicative of compensatory

damages. Id. at 426. In this case, it is not at all clear that in

light of the defendant’s conduct (repeated and deliberate

failure to correct a known public safety hazard) and the

harm to the plaintiff (permanent debilitation and chronic

pain), a $5 million compensatory award is so “substantial” as

to displace the general rule that single-digit multipliers

satisfy due process concerns. See id. at 425.°

. The court’s statement that “breathtaking” disparities are

impermissible quoted Advocat, Inc. v. Sauer, 111 S.W.3d 346, 361 (Ark.

2003), cert. denied, 124 S.Ct. 582 (2003), which itself quoted Gore, 517 U.S.

at 583. 2004 WL 352525 at 15, Pet. App. 33a.

6

For the same reason, Union Pacific’s citation of cases involving

compensatory damages awards exceeding $200,000 as supporting its

assertion that lower courts have misunderstood State Farm’s directive is

of no assistance because it ignores State Farm’s fact-specific

“substantiality” analysis. Pet. 15-17 n.8.

15

Moreover, even where compensatory damages do meet

the “substantial” threshold, State Farm’s suggestion that a

1-to-1 ratio may approach constitutional limits cannot serve

as the absolute prescription that Union Pacific now

suggests. If it did, the ratio analysis would replace

reprehensibility as “the most important indicium of the

reasonableness of a punitive damages award,” Gore, 517 U.S.

at 575, and impose an absolute ceiling in certain cases

without regard for whether state goals of deterrence and

retribution have been achieved, State Farm, 538 U.S. at 425;

Gore, 517 U.S. at 568. Because such considerations cannot

be resolved without weighing individual circumstances and

all three of the Gore/State Farm elements, the Court has

consistently refused to read the general command of due

process as imposing the “bright-line ratio[s]” on which Union

Pacific insists. State Farm, 538 U.S. at 425. See also Pacific

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18 (1991) (“We need

not, and indeed we cannot, draw a mathematical bright line

er |

With regard to the final factor, the Arkansas court

properly considered “legislative judgments concerning

appropriate sanctions for the conduct at issue,” Gore, 517

U.S. at 583 (citation omitted), by comparing the punitive

damages award to “civil penalties authorized or imposed in

comparable cases.” Jd. at 575. Given that federal

regulations explicitly provide that each day a violation

continues constitutes a separate offense, the court

estimated—based on a maximum federal penalty of $22,000

and state penalty of $500—that the potential liability for

noncompliance over the period Union Pacific controlled the

tracks was nearly $10 million. 2004 WL 32525 at 16, Pet.

App. 35a-36a. The court’s conclusion that the total civil

penalties authorized by law were sufficiently comparable to

uphold the punitive damages award is far more conservative

than the Eleventh Circuit’s opinion in Johansen, on which

Union Pacific relies. Johansen v. Combustion Eng’g, Inc.,

16

170 F.3d 1320, 1339 (11th Cir. 1999) (upholding a $4.35

million punitive award based on the conclusion that a $10,000

maximum fine “provided fair notice . . . that [defendant]

might be subject to a substantial penalty”), cert. denied, sub

nom. Combustion E'ng’g, Inc. v. McGill, 528 U.S. 931 (1999).

While Union Pacific attempts to undermine the Arkansas

court’s holding by arguing that it failed to consider other

jury awards and actual Federal Railroad Administration

fines, this argument is also waived on account of the

railroad’s failure to raise these issues below.’

Thus, while the Petition distorts the record to suggest

that the Arkansas Supreme Court based its State Farm

decision primarily on the railroad’s destruction of evidence

and testimony about out-of-jurisdiction conduct, the court

properly concluded that the punitive damages were not

“grossly excessive” under any of the Gore/State Farm

elements.

In any event, the spoliation instruction given below

stands as a further reason why this case is ill-suited for

7 The Petition attempts a comparison with the award in Brown v.

~ Missouri Pacific Ratirvoad, 703 F.2d 1050 (8th Cir. 1983), Pet. 9 & n.5, but

the railroad only cited this case to the Arkansas Supreme Court for

purposes of analyzing reprehensibility under state common-law standards.

Abst. 231-232. Cf. Adams v. Robertson, 520 U.S. 88, 88 (1997) (per curiam)

(“The discussion of ‘a federal case, in the midst of an unrelated argument,

is insufficient to inform a state court that it has been presented with a

claim.” (citation omitted)). Similarly, Union Pacific neither cited

Johansen nor provided the Arkansas Supreme Court with any evidence of

actual federal fine levels. Abst. 232-233; Reply Br. 12-13. Had the

railroad presented the arguments below that it includes now in its

Petition, the Barbers would have had a full opportunity to respond to the

appropriateness of comparing the award to fines computed over a period

of years and/or fines applied to hazardous material violations. This

Court’s general rule barring arguments that were not presented to the

courts below is designed to prevent just this type of sandbagging.

2 SAP ANRL ERTL NIRS Bh PRESET SII NR

17

review in this Court. An instruction permitting the jury to

infer that the contents of intentionally destroyed records

would support the opposing party’s case is a routine

instruction—one with which Union Pacific is quite familiar.

See, e.g., Stevenson v. Union Pac. RR. Co., 204 F.R.D. 425

(E.D. Ark. 2001), affd in relevant part, 354 F.3d 739 (8th

Cir. 2004) (upholding the use of such instruction in

connection with Union Pacific’s practice of recording over

voice tapes relating to serious accidents and its failure to

preserve track inspection records after receiving discovery

requests); Privett v. Union Pac. R.R. Co., No. 3:99ev00110,

slip op. at 9 (E.D. Ark. Jan. 13, 2008) (use of instruction with

regard to destruction of voice tapes). The railroad never

appealed the issuance of the instruction in this case, nor

argued to the Arkansas Supreme Court that it raised any

issue under State Farm.

Accordingly, as the case comes before this Court, the

evidentiary record must be viewed through the lens of the

properly given instruction—that jurors could infer that the

records destroyed by Union Pacific would have further

supported the Barbers’ claims that the railroad had acted

with conscious disregard of a known risk to public safety.

The already significant evidence concerning Union Pacific’s

deliberate failure to correct a known safety hazard, viewed

in light of this instruction, further supports the Arkansas

Supreme Court’s reprehensibility analysis, and makes this

case a particularly poor candidate for this Court’s review.*

Contrary to Union Pacific’s implication, the trial court’s instructions

never suggested that the jury should award punitive damages simply

because the railroad destroyed evidence. The trial court specifically

rejected this contention and explained that it sent the punitive damages

issue to the jury because of the evidence concerning reprehensibility (i.e.,

evidence on vegetation, ignored warnings, and related policies). Pet. App.

48a.

Finally, with regard to the evidence of Union Pacific’s

policy of refusing to make safety enhancements to crossings

not covered by federal and state enhancement programs, the

use of such evidence was entirely consistent with State

Farm’s statement that “out-of-state conduct may be

probative when it demonstrates the deliberateness and

culpability of the defendant’s action in the State where it is

tortuous, but that conduct must have a nexus to the specific

harm suffered by the plaintiff.... A defendant should be

punished for the conduct that harmed the plaintiff, not for

being an unsavory individual or business.” State Farm, 538

U.S. at 422-23 (emphasis added). °

Moreover, the railroad misreads State Farm’s warning that “a

defendant’s dissimilar acts, independent from the acts upon which liability

was premised, may not serve as the basis for punitive damages.” 538 U.S.

at 422. That statement referred to other types of substantive misconduct

perpetrated against other State Farm customers, not the concealment of

evidence reflecting on the course of conduct at issue in the case. In fact,

the Court went on to suggest that State Farm’s failure to report a prior

$100 million punitive damages award could potentially have been relevant

to the reprehensibility analysis if the prior case had involved the same

type of misconduct alleged by the plaintiffs. Jd. at 427. See also id. at 423

(recidivists more reprehensible because they have repeated misconduct

known to be unlawful). Similarly here, the railroad’s destruction of

evidence reflecting its knowledge of and reaction to crossing conditions

could support an inference that the records would have illustrated Union

Pacific’s deliberate disregard of a known risk to public safety.

s Union Pacific also asserts that State Farm’s general prohibition

against basing punitive damages awards on out-of-state conduct should

extend to prohibit reliance on conduct that was purportedly lawful under

preemptive federal statutes. Pet. 19-21. This argument also is waived

because the railroad neither challenged the punitive damages award on

this basis before the Arkansas Supreme Court, nor raised the question in

its challenges to evidence concerning the issuance of slow orders either in

initial briefing or in the petition for rehearing. As discussed infra in

19

Here, the evidence directly related to Union Pacific’s

response to requests to improve abnormally hazardous

crossings, including the crossing at County Road 123. Cf.

CSX Transp., Inc. v. Palank, 743 So. 2d 556 (Fla. Dist. Ct.

App. 1999), cert. denied, 531 U.S. 822 (2000) (company

policies and budgeting led to failure to inspect defective

switch causing derailment). Unlike State Farm, the crossing

policy evidence did not involve “conduct that bore no

relation to the [plaintiffs’] harm,” but rather the exact

conduct at issue in the case. State Farm, 538 U.S. at 422.

Moreover, this case does not raise the same type of concerns

that this Court expressed in State Farm about the plaintiffs’

arguments and the lower courts’ treatment of out-of-state

evidence. The Barbers did not repeatedly urge the jury to

hold Union Pacific “accountable for what it’s doing across

the country, which is the purpose of punitive damages,” and

the appellate court did not uphold the award on the basis of

“tangential” issues and “unrelated testimony.” Jd. at 420-21

(citation omitted), 424.

Instead, the evidence added to the already substantial

showing of reprehensibility by suggesting that Union

Pacific’s actions in this case reflected not just an intentional

disregard for public safety, but a cold financial calculation

that could only be deterred by imposing damages beyond the

range of compensatory damages typically awarded in cases

involving serious injury or death.'® See Brown v. Missouri

Section II, this case presents an unsuitable vehicle for reviewing federal

preemption issues.

'0 As discussed in the Counter Statement of the Case, the policy

evidence came from several sources. Dr. Levine’s testimony regarding his

experiences with Union Pacific and other railroads through his prior work

at the Association of American Railroads was properly introduced to

establish his credentials and familiarity with Union Pacific in particular.

The fact that Dr. Levine stated that he criticized all railroads for not

20

Pac. R.R., 703 F.2d 1050, 1053 (8th Cir. 1983) (“The

Arkansas Supreme Court will allow punitive damages to

deter a defendant from deciding it is cheaper to be sued and

pay compensatory damages than to remedy a dangerous

condition.”).

II. THE ARKANSAS SUPREME COURT

PROPERLY RESOLVED UNION

PACIFIC’S CHALLENGE TO THE SLOW

ORDER EVIDENCE AS IT WAS

PRESENTED BELOW.

The Petition asserts that imposing liability on Union

Pacific on account of the failure to issue “slow orders” for

trains traveling through the crossing at County Road 123 is

federally preempted, and that both the general verdict and

the punitive damages award must therefore be overturned.

It is not even argued, however, that there is any division of

authority in the lower courts on this issue, or that the issue

is in any way independently certworthy. In this regard, the

Petition seeks mere error correction.

Moreover, the railroad’s claim of clear error is both

incorrect and inadequately preserved. The record on this

issue, and its presentation to the Arkansas Supreme Court

on review, was sufficiently muddled that the Arkansas

Supreme Court quite properly construed Union Pacific’s

brief as simply chailenging the sufficiency of the evidence.

spending enough money on grade crossing safety in response to a cross

examination question, Abst. 136, hardly invalidates his assessment of

Union Pacific’s financial and policy materials or the Union Pacific

employees’ testimony regarding policies and practices. As for statistics

referenced in opening argument that were not ultimately introduced at

trial, the trial court provided an appropriate cautionary instruction. Tr.

6540. See also, e.g., Nobles v. Casebier, 938 S.W.2d 849, 851 (Ark. 1997)

(instruction obviates need for new trial).

21

Because the Arkansas court’s resolution of that sufficiency

of evidence challenge was proper, there can be no serious

contention that this issue merits this Court’s review.

The record in this case concerning speed and slow

orders is, in a word, a jumble. In response to Union Pacific’s

motion to dismiss and motions in limine, the Barbers

presented three alternative arguments: (1) that although

claims of excessive speed were preempted, their claim that

the railroad negligently failed to issue a slow order was not;

(2) that even if the claim that state law required Union

Pacific to issue a slow order was preempted, the railroad

nevertheless violated a federal duty to issue a slow order;

and (3) that the evidence was relevant because the railroad

may have in fact issued slow orders evidencing knowledge of

hazardous conditions and then concealed that evidence.

Abst. 21-28."

'' This Court has held that federal speed rules generally preempt

common law negligence standards, but that the Federal Railroad Safety

Act explicitly exempts state standards governing “essentially local safety

hazard[s]”” from such preemption. CSX Transp., Inc. v. Easterwood, 507

U.S. 658, 662 (1993) (quoting 45 U.S.C. § 434, now codified as amended at

49 U.S.C. § 20106). Easterwood also reserved the question of whether,

aside from direct claims of excessive speed, “related tort law duties, such

as the duty to slow or stop a train to avoid a specific, individual hazard”

are federally preempted. Jd. at 675 n.15. At least one lower court has

correctly held that failure to issue slow orders required under federal

standards can be the basis for negligence actions. See Stone v. CSX

Transp., Inc., 37 F. Supp. 2d 789 (S.D. W. Va. 1999).

Easterwood also held that state negligence claims are preempted

when federal funds “participate” in the installation of warning devices at a

particular crossing. 507 U.S. at 671-78. See also Norfolk S. Ry. Co. v.

Shanklin, 529 U.S. 344 (2000). No federal funds were used at the crossing

over County Road 123, Abst. 129, so arguments and evidence regarding

Union Pacific's failure to install additional warning devices were proper.

22

The trial court permitted the Barbers to introduce

certain evidence concerning the issuance of slow orders, but

its reasoning was concededly opaque.” The trial court’s only

specific instruction to the jury concerning speed or slow

orders was:

There was in force in the United States and the

State of Arkansas at the time of the occurrence, [a]

federal regulation{] which provided ..._ the

federally authorized speed for this track on the date

of the accident was 60 miles per hour. A violation of

[this] regulation{], although not necessarily

negligence, is evidence of negligence to be

considered by you along with all the other facts and

circumstances in the case.

Tr. 6546-6547. The court never stated that Union Pacific had

a duty to issue slow orders, and warned jurors that “[yJou

should not consider any rule of law [with] which you may be

familiar unless it is included in my instructions.” Tr. 6539.

'2 Evidence concerning the slow orders was relevant to several issues

in the case, including the track conditions that caused or contributed to

the accident, Union Pacific’s knowledge of such conditions, the railroad’s

course of conduct in response to such knowledge, and spoliation of

evidence. The trial court’s assessment of each of the Barbers’ three

arguments was somewhat unclear. See, e.g., Abst. 41 (“{O]ther than the

issue involving slow orders, whether they should or shouldn’t issue them

or maybe did, as far as the actual speed itself, it’s preempted.”), 99 (“I

know that’s preempted, unless there’s a slow order in effect. But even

though there may be case law to that effect, if a slow order is in effect

internally because there’s something wrong with the track, that would be

relevant and go to the issue of negligence.”), 123 (permitting testimony

that “(tJhere was a negligent failure to slow-order the tracks” based on

the condition of the ties), 167 (“My ruling on the motion in limine was that

as to the issue of speed, that it is preempted, and the only way the court

would allow that issue would be if there was some type of slow order... .

I’m not changing my ruling, I’m just repeating it.”).

23

Union Pacific neither objected to the speed instruction nor

requested any other instruction with respect to slow orders.

On appeal, Union Pacific presented the slow order issue

to the Arkansas Supreme Court under the heading “The

Circuit Court erred in denying the motion for a directed

verdict on the claim of negligent failure to issue a slow order

and on the claim that the crossing was abnormally

dangerous,” followed by a general statement that the

applicable standard of review “is whether the verdict is

supported by substantial evidence.” Abst. 222. Union

Pacific went on to discuss two of the Barbers’ three

arguments for why the slow order evidence was proper, and

then concluded with the statement, “the court should have

granted UP’s motion in limine and motion for a directed

verdict on the claim that UP negligently failed to issue a

slow order.” Abst. 224.

The Arkansas Supreme Court properly evaluated Union

Pacific’s arguments as presented. See Ark. S. Ct. R. 4-2(7)

(“Arguments shall be presented under subheadings

numbered to correspond to the outline of points to be relied

upon. For each issue, the applicable standard of review shall

be concisely stated at the beginning of the discussion of the

issue.”). The court noted that the railroad’s arguments

regarding slow orders and abnormally dangerous crossings

did “not challenge the sufficiency of the evidence to support

the general verdict of negligence. . . . [but rather]

challenge[d] the sufficiency of the evidence on two of several

theories that support the general verdict.” Barber, 2004 WL

352525 at 8, Pet. App. 19a-20a. Emphasizing that Union

Pacific had not challenged the jury instructions, the court

distinguished a string of cases under Arkansas law requiring

reversal when a jury is presented with an erroneous

24

instruction concerning one of several legal theories

presented in a case. /d. (citing, e.g., Advocat, Inc. v. Sauer,

111 S.W.3d 346 (Ark. 2008), cert. denied, 124 S.Ct. 532

(2003)).'* Instead, the court applied an earlier decision

holding that it would not reverse based on a sufficiency of

evidence challenge to one particular theory of negligence

when the evidence was sufficient to support the verdict on

other negligence theories presented to the jury. Jd. (citing

Union Pac. R.R. Co. v. Sharp, 952 S.W.2d 658 (Ark. 1997)).

Because the evidence concerning violation of state

vegetation statutes was sufficient to support the verdict, the

court affirmed the trial court’s judgment. Jd.

Union Pacific, which had unsuccessfully sought leave to

file supplemental authorities on this issue after oral

argument in the Arkansas Supreme Court, then filed a

petition for rehearing characterizing its earlier challenge as

the “practical equivalent of a challenge to the way the jury

was instructed on the law.” Reh’g Pet. 4. The railroad also

asserted for the first time that because the case involved

federal issues, it should be governed by federal standards

requiring reversal of general verdicts if legal error infected

any theory on which the jury may have relied. Reh’g Pet. 9

(characterizing Sharp as a novel rule of state law). The

'3 Indeed, the court seemed implicitly to question whether the slow

order issue had actually been presented to the jury as a theory of

negligence in the case, since it identified the Barbers’ five theories of

negligence as (1) violation of Arkansas statutes on vegetation control; (2)

the presence of an abnormally dangerous crossing; (3) failure to sound the

train’s horn; (4) failure to keep a proper lookout; and (5) violation of

federal regulations requiring railroads to instruct their employees

concerning operating rules, time tables, and time table special

instructions. Barber, 2004 WL 352525 at 9, Pet. App. 19a. The failure to

instruct theory was based on evidence concerning railroad procedures for

the reporting of safety problems, keeping a proper lookout, and use of the

train’s horn. See 3-SAB, 4-SAB, 6-SAB.

25

Arkansas Supreme Court denied the petition without an

opinion.

Nothing here merits review in this Court. First, it is

not even argued that there is any division of authority on

tnis question. No serious contention is made that this issue

is independently certworthy.

Second, on account of Union Pacific’s failure properly to

preserve and present the arguments below that it now

attempts to advance, there is no clear ruling on the merits

from either court below for this Court to review. The

railroad failed to clarify the basis of the trial court’s ruling

and failed to object to the jury instructions on speed or

request an instruction on slow orders. On appeal, Union

Pacific framed its challenge as focusing on the sufficiency of

the evidence.’ The railroad also failed to raise its new

arguments regarding federal procedural preemption until its

petition for rehearing, which is too late.'° See, e.g., Pannell

14 It also failed to assert to the Arkansas Supreme Court that evidence

of conduct that is allegedly governed by federal standards cannot be used

to support a punitive damages award under State Farm. See supra note

6.

'S Union Pacific’s arguments are also unpersuasive on the merits. The

“general rule, ‘bottomed deeply in belief in the importance of state control

of state judicial procedure, is that federal law takes the state courts as it

finds them.” Howlett v. Rose, 496 U.S. 356, 372 (1990) (citation omitted).

The railroad invokes a narrow exception found in cases that have

overridden local procedural rules concerning pleading requirements,

exhaustion, and similar threshold issues that “burden[] the exercise of [a]

federal right” in a manner that is inconsistent with congressional intent.

See, e.g., Felder v. Casey, 487 U.S. 131 (1988); Brown v. Western Ry. of

Ala., 338 U.S. 294 (1950). With regard to “neutral state Rule[s] regarding

the administration of the courts,” however, this Court applies a

strengthened presumption against preemption. Johnson v. Fankell, 520

U.S. 911, 918 (1997).

The Arkansas court’s treatment of sufficiency of evidence challenges

where there is independent evidence to support liability under another

26

v. State, 897 S.W.2d. 552 (Ark. 1995) (per curiam) (petitions

for rehearing shall not encompass new facts, new briefs, and

new arguments); see also Adams v. Robertson, 520 U.S. 83,

89 n.3 (1997) (per curiam) (“{W]e have generally refused to

consider issues raised clearly for the first time in a petition

for rehearing when the state court is silent on the

question.”).

Third, the Arkansas Supreme Court properly resolved

the slow order issue as it was framed by Union Pacific at the

time. In the context of a challenge to the sufficiency of

evidence on one of several theories of negligence, the court’s

ruling was consistent not only with its own precedent,'* but

also with this Court’s holding in Griffin v. United States, 502

U.S. 46, 56 (1992) (rejecting the contention that the Court

should set aside a general verdict because one of the possible

bases of conviction was supported by insufficient evidence,

since jurors are well equipped to evaluate factual

inadequacies for themselves).

legal theory is a neutral administrative rule entitled to federal respect.

The rule does not discriminate between federal and state claims. Cf.

Howlett, 496 U.S. at 380; Felder, 487 U.S. at 140-45. Nor does a rule

concerning appellate review of evidentiary challenges to plaintiffs’

theories of liability burden railroads’ federal rights to raise legal

challenges to those same theories on grounds of preemption. Cf. Fankell,

520 U.S. at 921 (rule regarding availability of interlocutory appeal does

not burden defendants’ substantive ability to raise sovereign immunity

defense under federal law). In any event, where the holding was

consistent with this Court’s own precedent, see infra, the rule cannot be

characterized as “frequently and predictably producfing] different

outcomes” than would occur in federal court. Fankell, 520 U.S. at 920-21

(citation omitted).

16 See, e.g., Union Pac. R.R. Co. v. Sharp, 952 S.W.2d 658 (Ark. 1997);

W.M. Bashlin Co. v. Smith, 643 S.W.2d 526 (Ark. 1983); Franklin v. State,

240 S.W. 708 (Ark. 1922).

27

Thus, much like Union Pacific’s due process arguments,

the railroad did not properly present and preserve below the

arguments it now advances to this Court. Because there is

no contention that this issue is one on which the lower courts

are divided, and because the garbled record in this case

renders it a particularly poor candidate for this Court’s.

review of the underlying preemption arguments, the

Petition should be denied.

CONCLUSION

28

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

September 2004

Respectfully submitted,

Robert L. Pottroff

Counsel of Record

Norbert Marek

MYERS, POTTROFF & BALL

320 Sunset Avenue

Manhattan, KS 66502-3757

(785) 589-4656

B. Michael Easley

EASLEY, HUDSON &

HOUSEAL

P.O. Box 1115

510 E. Cross St.

Forrest City, AR 72336-

1115

Gene Ludwig

Chris Kramer

LUDWIG LAW FIRM

8501 Pinnacle Valley Rd.

Little Rock, AR 72223