# Amicus Curiae Brief — Daniel Measurement Measurement Services Services, Inc. v. Eagle Research Research Research Corp. (No. 07-384) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1485%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 ## Text i eg MOTION FILED OCT 22 2007 Ez) No. 07-384 IN THE Supreme Court of the United States DANIEL MEASUREMENT SERVICES, INC., Petitioner, v. EAGLE RESEARCH CORP., Respondent. On Petition for a Writ of Certiorari To the Circuit Court Of Putnam County, West Virginia MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF MANUFACTURERS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, AMERICAN TORT REFORM ASSOCIATION, AND AMERICAN CHEMISTRY COUNCIL IN SUPPORT OF PETITIONER Victor E. Schwartz Cary Silverman (Counsel of Record) Shook, Hardy & Bacon L.L.P. 600 14% Street, N.W., Suite 800 Washington, D.C. 20005 (202) 783-8400 Attorneys for Curiae Additicaial Counsel Listed on Inside Cover Of Counsel Jan S. Amundson Quentin Riegel NATIONAL ASSOCIATION OF MANUFACTURERS 1331 Pennsylvania Avenue, N.W. Suite 600 Washington, D.C. 20004 (202) 637-3055 Robin S. Conrad NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 Sherman Joyce AMERICAN TORT REFORM ASSOCIATION 1850 M Street, N.W. Suite 1095 Washington, D.C. 20036 (202) 682-1163 Donald D. Evans AMERICAN CHEMISTRY COUNCIL 1300 Wilson Boulevard Arlington, Virginia 22209 (703) 741-5000 IN THE SUPREME COURT OF THE UNITED STATES - No. 07-384 DANIEL MEASUREMENT SERVICES, INC., Petitioner, v. EAGLE RESEARCH CORP., Respondent. On Petition for a Writ of Certiorari To the Circuit Court Of Putnam County, West Virginia MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF MANUFACTURERS, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, AMERICAN TORT REFORM ASSOCIATION, AND AMERICAN CHEMISTRY COUNCIL IN SUPPORT OF PETITIONER Pursuant to Rule 37 of the Rules of this Court, amici curiae request leave to file the accompanying brief in support of the Petition for a Writ of Certio- rari.} Respondents’ counsel did not consent to the filing of an amici curiae brief in this action. Counsel of record for all par- The National Association of Manufacturers (“NAM”) is the nation’s largest industrial trade asso- ciation, representing small and large manufacturers in every industrial sector and in all 50 states. NAM’s mission is to enhance the competitiveness of manu- facturers and improve American living standards by shaping a legislative and regulatory environment conducive to U.S. economic growth and to increase understanding among policymakers, the media, and the general public about the importance of manufac- turing to America’s economic strength. The Chamber of Commerce of the United States of America (“the Chamber”) is the world’s largest business federation, representing an underlying membeship of more than three million companies and professional organizations of all sizes and in all industries. The Chamber advocates the interests of its members in matters before the courts, Congress, and the Executive Branch. To that end, the Cham- ber regularly files amicus briefs in cases that raise issues of vital concern to the nation’s business com- munity. Founded in 1986, the American Tort Reform As- sociation (“ATRA”) is a broad-based coalition of more than 300 businesses, corporations, municipalities, associations, and professional firms that have pooled their resources to promote reform of the civil justice system with the goal of ensuring fairness, balance, ties received notice at least ten days prior to the due date of amici curiae’s intention to file this brief. In accordance with Rule 37.6, amici curiae state that no counsel for a party has authored this brief in whole or in part, and that no person or entity, other than the amici, its members, or its counsel have made a monetary contribution to its preparation or submission. and predictability in civil litigation. For more than a decade, ATRA has filed amicus curiae briefs in cases before federal and state courts that have addressed important liability issues. The American Chemistry Council (“ACC”) repre- sents the leading companies engaged in the business of chemistry. The business of chemistry is a key element of the nation’s economy, accounting for ten cents out of every dollar in U.S. exports. Chemistry companies invest more in research and development than any other business sector. Amici seek leave to file a brief in this case be- cause the issue of whether procedures employed by a court to sustain a compensatory damage award meet the minimum requirements of the Due Process Clause is of importance to each and every business in this country. If state courts are permitted to enter awards that are completely unsupported by the evi- dence, then businesses will be placed at substantial risk of arbitrary deprivations of their property. This risk is magnified, where, as here, summary judgment is routinely denied, post-trial review is nominal at best, and appellate review is unavailable. The proposed amici curiae brief does not repeat the Petitioner’s arguments. Rather, the brief begins by considering the public policy underlying the his- tory and development this Court’s due process juris- prudence and the principle that this tradition does not permit arbitrary compensatory damage awards. The brief then considers other instances in which this Court and others have, on the basis of proce- dural due process, found that a state cannot deprive an individual of life, liberty, or property in absence of supporting evidence. Finally, the brief addresses and seeks to alleviate any potential concern of this Court that its intervention in this case could disturb the basic judicial structure of states that lack an in- termediate appellate court or appellate review as a matter of right. The brief also explains why granting certiorari in this case will not place this Court in the position of acting as a court of last resort for every alleged excessive compensatory damage award. Accordingly, amici request that the Court grant this motion. Respectfully submitted, Victor E. Schwartz Cary Silverman (Counsel of Record) SHOOK, HARDY & BACON L.L.P. 600 14 Street, N.W., Suite 800 Washington, D.C. 20005 (202) 783-8400 Attorneys for Amici Curiae Jan S. Amundson Quentin Riegel NATIONAL ASSOCIATION OF MANUFACTURERS 1331 Pennsylvania Avenue, N.W. Suite 600 Washington, D.C. 20004 (202) 637-3055 Robin S. Conrad NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 Sherman Joyce AMERICAN TORT REFORM ASSOCIATION 1850 M Street, N.W. Suite 1095 Washington, D.C. 20036 (202) 682-1163 Donald D. Evans AMERICAN CHEMISTRY COUNCIL 1300 Wilson Boulevard Arlington, Virginia 22209 (703) 741-5000 Of Counsel Dated: October 22, 2007 TABLE OF CONTENTS Page TABLE OF AUTHORITIES..................cesesseseseeees iv INTEREST OF AMICI CURIAE .................0s0e0000s 1 STATEMENT OF THE CASE ............ccccccccsseeeeeees 2 SUMMARY OF ARGUMENT ..............cceseeseeees 2 SITE cis vcintvksotnaciiindencehesenntinicinietpnsinteneteays 6 I. THIS COURT'S DUE PROCESS JURISPRUDENCE REQUIRES SOME MINIMUM LEVEL OF PRE- AND POST-TRIAL REVIEW, AND EVIDENTIARY SUPPORT, TO SUSTAIN A DAMAGE AWARD ............... 6 A. History and Development of Due Process.. 6 B. Procedural Due Process Does Not Permit Unsupported Compensatory cian reiasenstuensianede 11 II. ADAMAGE AWARD WITHOUT EVIDENTIARY FOUNDATION IS INCONSISTENT WITH DUE PROCESSG....... 14 III.WHAT DECIDING THIS CASE WILL AND NE BE aidlsenniscrtiniperakaspanstinetesebeniviicetars 17 A. This Case Presents the Opportunity to Clarify and Reaffirm That Due Process Does Not Permit Arbitrary Awards. ........... 17 il B. This Case Will Not Unduly Interfere With State Judicial Sovereignty or Make This Court a Final Arbiter of Every Excessive Compensatory Damage Award................... 18 COIN a ae esti tain ei rrettccserevesesevseevecevecasseeee 20 ili TABLE OF AUTHORITIES Page(s) CASES Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir. 1990).................... 15 Brown v. Mississippi, 297 U.S. 278 (1936)..... 17 Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604 (1990)........... 10 Carey v. Pipus, 435 U.S. 247 (1978)................ 15 Cooper Indus., Inc., v. Leatherman Tool Group, Inc., 582 U.S. 424 (2001) ............... 13 Crookston v. Fire Ins. Exchange, GL7 F.BG TOD CURR TBST) .ccocceccccccescosceveses 12 Ducker v. Wood, 99 Eng. Rep. 1092 (K.B. 1786) 11 Douglas v. Buder, 412 U.S. 430 (1973)........... 15 Duncan v. Louisiana, 391 U.S. 145 (1968)..... 7 Federal Trade Comm’n v. Kuykendall, 312 F.3d 1329 (10th Cir. 2002), vacated on reh’g en banc, 371 F.3d 745 (2004)........... 16 Gasperini v. Center for Humanities, i) Bis M2. | Eee oe nnn 12 Goldberg v. Kelly, 397 U.S. 254 (1970)........... i) Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996)..........0000000000. 15 iV Honda Motor Co. v. Oberg, GIS US. 415 CIGGS) 2..0ccecccoceccceseses 5, 10, 11,17 Hurtado v. California, 110 U.S. 516 (1884).... 8 In re Murchison, 349 U.S. 133 (1955)............. 2 In re Oliver, 333 U.S. 257 (1948) ..............e. 17 In re Winship, 397 U.S. 358 (1970)................ 17,18 Malloy v. Hogan, 378 U.S. 1 (1964) ................ 8 Mathews v. Eldridge, 424 U.S. 319 (1976) ..... 9 Morrissey v. Brewer, 408 U.S. 471 (1972)....... 9 Murray’s Lessee, v. Hoboken Land & Improvement Co., 59 U.S. 272 (1855)........ 7 Pacific Mut. Life. Ins. Co. v. Haslip, RETR an cED 0 tO ee ONE 10, 13 Palko v. Connecticut, 302 U.S. 319 (1937), overruled by Benton v. Maryland, RE, SID sh cisncnsnvevovncscenssesescnasenvives 8 Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996)................00000 15 Ramsey v. American Air Filter Co., 772 F.2d 1303 (7th Cir. 1985).................... 15 Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232 (1957)........... 14 Snyder v. Commonwealth of Massachusetts, 291 U.S. 97 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964)........... 8 Spence v. Board of Educ. of Christina Sch. Dist., 806 F.2d 1198 (3d Cir. 1986)..............cccc0 15 Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) 10 Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, ee rae RN cavsbavinndccteveconcnsestncnprsiine 15 Tumey v. Ohio, 273 U.S. 510 (1927) ............... 17 TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993) ........ccscceeees 11, 13-14 United States v. Betsy, 8 U.S. 443 (1808) ....... 7-8 CONSTITUTIONAL AND STATUTORY PROVISIONS Bee EP MRI. W evnnensnenassscsicccedarstecsosesosens 6 Bree SE, TAIT, TEE oD conecercoccccssevecensscese 6 Magna Carta ch. 39 (Eng. 1215)..................... 7 Be Be Oe wikeisccnterspeesenscassatenrscevsane 7 OTHER REFERENCES AND AUTHORITIES Paul DeCamp, Beyond State Farm: Due Process Constraints on Noneconomic Compensatory Damages, 27 Harv. J. L. & Pub. Pol’y 231 (2003)...... 13 vi Edward J. Eberle, Procedural Due Process: The Original Understanding, 4 Const. Comment. 339 (1987)................... 6 Robert Riggs, Constitutionalizing Punitive Damages: The Limits of Due Process, 52 Ohio St. L.J. 859 (1991)............ sees 13 Edward L. Rubin, Due Process and the Administrative State, 72 Cal. L. Rev. 1044 (1984)..............cccseeeee 6 Stephen Williams, ‘Liberty’ In the Due Process Clauses of the Fifth and Fourteenth Amendments: The Framers’ Intentions, 53 U. Colo. L. Rev. 117 (1981) ..............0+0+. 7 National Center for State Courts, State Court Caseload Statistics, 2005: State Court Structure Charts (2006), available at http://www.ncsconline.org/D_Research/csp/2005_fi les/State%20Court%20Caseload%20Statistics%20 IE kcieicnctniaicncociuasiccenilanvdbimnedildiimbbasames 18-19 INTEREST OF AMICI CURIAE' The National Association of Manufacturers (“NAM”) is the nation’s largest industrial trade association, representing small and _ large manufacturers in every industrial sector and in all 50 states. NAM’s mission is to enhance the competitiveness of manufacturers and improve American living standards by shaping a legislative and regulatory environment conducive to US. economic growth and to increase understanding among policymakers, the media, and the general public about the importance of manufacturing to America’s economic strength. The Chamber of Commerce of the United States of America (“the Chamber”) is the world’s largest business federation, representing an underlying membership of more than three million companies and professional organizations of all sizes and in all industries. The Chamber advocates the interests of its members in matters before the courts, Congress, and the Executive Branch. To that end, the Cham- ber regularly files amicus briefs in cases that raise issues of vital concern to the nation’s business com- munity. Founded in 1986, the American Tort Reform Association (“ATRA”) is a broad-based coalition of ; Respondents’ counsel did not consent to the filing of an amici curiae brief in this action. Counsel of record for all par- ties received notice at least ten days prior to the due date of amici curiae’s intention to file this brief. In accordance with Rule 37.6, amici curiae state that no counsel for a party has authored this brief in whole or in part, and that no person or entity, other than the amici, its members, or its counsel have made a monetary contribution to its preparation or submission. more than 300 __—i businesses, corporations, municipalities, associations, and professional firms that have pooled their resources to promote reform of the civil justice system with the goal of ensuring fairness, balance, and predictability in civil litigation. For more than a decade, ATRA has filed amicus curiae briefs in cases before federal and state courts that have addressed important liability issues. The American Chemistry Council (“ACC”) repre- sents the leading companies engaged in the business of chemistry. The business of chemistry is a key element of the nation’s economy, accounting for ten cents out of every dollar in U.S. exports. Chemistry companies invest more in research and development than any other business sector. STATEMENT OF THE CASE Amici adopt and incorporate Petitioner’s state- ment of the case. SUMMARY OF ARGUMENT This case presents an important constitutional is- sue of procedural due process: whether a court may deprive a defendant of property by allowing a com- pensatory damage award that has no basis in the evidence to stand with no more than cursory pre- and post-trial procedures and no appellate review. “A fair trial in a fair tribunal is a basic require- ment of due process.” In re Murchison, 349 U.S. 133, 136 (1955). Here, the trial court’s actions and inac- tion exemplify the complete lack of the most basic, fundamental procedures to ensure due process. Two statements of the trial court judge demonstrate how a jury reached a multimillion dollar compensatory damage award, without evidence that the plaintiff experienced an actual loss, for an alleged breach of an oral contract and disclosure of trade secrets, and why that award was permitted to stand. Early in the case, the trial court took a troubling approach in deciding a defendant’s motion for sum- mary judgment: [If} you’ve done your homework on me and you'll know what my reversal rate is. And I will tell you in the field of civil law, civil liti- gation, the only time I’ve been reversed in 14 years is when I grant summary judgment. There’s one thing I have learned in the State of West Virginia the hard way, this ain’t Texas, this ain’t Kansas, this is West Vir- ginia, and we don’t give summary judgment. Every time I do, I get reversed. Not every time literally, but that’s where it is. Our system favors taking it to ajury. And I’m go- ing to allow all of these to go to ajury. Plain and simple. All of your’s, all of the plain- tiffs. Even the individual one against Mr. Butch. I don’t know how you are going to ar- gue all of this and present it to a jury. That will be your problem. App. at 47a. In other words, the trial court ex- pressed a blanket policy against summary judgment, even when it had concern that the facts accepted in the light most favorably to the plaintiff might not support a claim. The court continued this hands-off approach fol- lowing the trial in deciding whether to order a new trial on damages. Although the court noted that it was “most troubled” by and “struggling with” the measure of damages in the case, the court concluded that “I'm not going to reduce it, though I am con- cerned with it.” App. at 10a, 12a. The court ex- pressed bewilderment at the $10.5 million in conse- quential damages for breach of a confidentiality agreement, noting that “I did not instruct the jury that they could take [the defendants] profits away from them. Maybe that was what the law allowed, maybe that was a proper way, but I didn’t instruct the jury that way.” App. at 12a-13a. The court went on to conclude: And [ll be frank with you, I cannot recall now whether the plaintiffs at that time said “Judge, this is a wrong instruction, you ought to be instructing the jury that they can base the measure of damages on the lost — based on taking away profits.” I don’t have a memory of that. I don’t think you did, I’m not sure. I can’t wade through them all at this stage, and so I’m going to leave that as it is. I’m going to deny the defense motion in regard to that as well. App. at 13a. This type of lackadaisical deliberation and abrogation of responsibility, at both the pre- and post-trial phases, raises serious questions under the Due Process Clause for the consideration of this Court. The combined import of these two actions posed an unacceptable risk of a standardless depri- vation of property. Moreover, both the trial court’s approach to sum- mary judgment and the damage award seemed prem- ised on the availability of appellate review. Yet, West Virginia has a single appellate court in which review is discretionary. Indeed, the West Virginia Supreme Court of Appeals denied the defendant’s pe- tition for appeal in this case. App. at 27a-28a. This further underscores the need for adequate procedural safeguards at the trial court level to comport with the minimum requirements of the Due Process Clause. The line of jurisprudence that formed the under- lying basis of this Court’s conclusion in Honda Motor Co. v. Oberg that procedural due process requires the amount of a punitive damages award to be subject to “meaningful and adequate” post-verdict or appellate review was not confined to punitive damage awards. 512 U.S. 415, 442 (1993) (invalidating an Oregon law that precluded judicial review of the amount of puni- tive damage awards). In fact, this Court specifically recognized in Oberg, “Since there is no suggestion that different standards of judicial review were ap- plied for punitive and compensatory damages before the 20th century, no effort has been made to sepa- rate out the two classes of cases.” Id. at 442 n.2. The case at bar provides an important opportunity for this Court to reaffirm and clarify the constitutional principle that the Due Process Clause requires some meaningful level of pre- and post-trial review as a safeguard against arbitrary or excessive compensa- tory damage awards. These are fundamentals of our system of jurisprudence that must be preserved. ARGUMENT I. THIS COURT’S DUE PROCESS JURISPRUDENCE REQUIRES SOME MINIMUM LEVEL OF PRE- AND POST-TRIAL REVIEW, AND EVIDENTIARY SUP- PORT, TO SUSTAIN A DAMAGE AWARD The Fifth and Fourteenth Amendments to the Constitution of the United States protect against the unfair deprivation of “life, liberty, or property, with- out due process of law.” U.S. CONST. AMENDS. V, XIV. § 1. The words “due process” have developed over time to incorporate safeguards on both procedural and substantive elements—assuring fair notice and opportunity to be heard and proceedings that are neither conducted in an arbitrary manner nor lead to an arbitrary result. Exactly what procedures fulfill this constitutional right is the product of a complex history and tradition, and one that has proven essen- tial to the analysis of the scope of the protection. To- day, this Court is asked to consider whether that his- tory and tradition constitutionally protects a defen- dant from an arbitrary compensatory damage award that has no basis in the evidence or jury instructions, that was not subject to even the most rudimentary post-trial review, and that received no appellate re- view. A. History and Development of Due Process Due process is the “oldest of our civil rights.” Edward L. Rubin, Due Process and the Administra- tive State, 72 Cal. L. Rev. 1044, 1044 (1984). This necessity of fair and impartial process derives from two sources of English law. See Edward J. Eberle, Procedural Due Process: The Original Understand- ing, 4 Const. Comment. 339, 340 (1987). One is Chapter 39 of the Magna Carta, which established that “No free man shall be taken, outlawed, ban- ished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judg- ment of his peers and by the law of the land.” Magna Carta ch. 39 (Eng. 1215) (emphasis added); see also Duncan v. Louisiana, 391 U.S. 145, 169 (1968). The second source, employing the words “due process,” comes from an English statute of 1354 which pro- vided “[tJhat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in Answer by due Proc- ess of the Law.” 28 Edw. 3 ch. 3 (1354). From these beginnings, the concept of a guaran- teed right of due process gradually became embedded in American legal culture and tradition. Although the Fifth Amendment’s due process clause passed with little recorded debate on the issue, it prompted several of the early states, none of which had a state constitutional due process provision, to adopt similar language. See Stephen Williams, ‘Liberty’ In the Due Process Clauses of the Fifth and Fourteenth Amend- ments: The Framers’ Intentions, 53 U. Colo. L. Rev. 117, 121-24 (1981). Prior to the adoption of the Fourteenth Amendment, however, due process was a right that existed, but one that was rarely discussed. This Court only addressed the meaning of due proc- ess on a few occasions, holding that the challenged process must either conflict with the text of another constitutional provision or with “those settled usages and modes of proceeding existing in the common and statute law of England.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1855); see also United States v. Betsy, 8 U.S. 443, 451 (18608) (stating that the Fifth Amendment due process clause “means by due process of the common law”) (emphasis in original). Extension of due process to state action under the Fourteenth Amendment has led to considerable in- crease in the scope and use of the protection, and greater refinement in its meaning. See Hurtado v. California, 110 U.S. 516, 532 (1884) (“[T]hese broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify. .. more comprehensive interpretation.”). Until the 1960’s, the history and tradition of chal- lenged procedures generally determined their consti- tutional adequacy. See, eg., Palko v. Connecticut, 302 U.S. 319, 328 (1937) (holding history and tradi- tion could permit a state to deny protection against double jeopardy), overruled by Benton v. Maryland, 395 U.S. 784 (1969). While a state is “free to regu- late the procedure of its courts in accordance with its own conception of policy and fairness,” it may not do so if “it offends some principle of justice so rooted in the traditions or conscience of our people as to be ranked as fundamental.” Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105 (1934) (Cardozo, J.), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964). During the 1960’s and 1970’s, the Court moved toward a more expansive understanding of due proc- ess. See, e.g., Malloy v. Hogan, 378 U.S. 1, 15 (1964) (“(CJontinuing re-examination of the constitutional conception of Fourteenth Amendment ‘due process’ of law is required, and that development of the com- munity’s sense of justice may in time lead to expan- sion of the protection which due process affords.”). “Fundamental fairness” emerged as the analytical tool to guide alleged due process deprivations and expand its reach. See Goldberg v. Kelly, 397 U.S. 254, 261 (1970) (requiring evidentiary hearing before termination of benefits by welfare authorities). This Court has made clear that due process requires state actors deciding whether to deprive a litigant of his or her property to meet minimum procedural safe- guards demanded by rudimentary due process, which include affording the recipient the opportunity to confront and cross-examine witnesses, to retain an attorney, and to present oral evidence to an impar- tial decision maker, whose conclusion must rest solely on the legal rules and evidence adduced at the hearing. See id. at 270-71. The modern test for determining the adequacy of the process used recognizes that “(D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. El- dridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). This Court has recognized three distinct factors that guide the ex- tent of the necessary procedures: (1) the private in- terest that will be affected by the official action; (2) the risk of an erroneous deprivation of such inter- est through the procedures used; and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, in- cluding the function involved and the fiscal and ad- ministrative burdens that the additional or substi- tute procedural requirement would entail. Jd. at 335. The Court requires this balancing of the public 10 and private interests “[tlo assure fairness.” Id. at 348. The once dispositive role of history and tradition in analyzing procedural due process claims, however, has not been supplanted. See Pacific Mut. Life. Ins. Co. v. Haslip, 499 U.S. 1, 36 (1991) (Scalia, J., con- curring) (criticizing Mathews and other due process opinions for “indiscriminately appl{ying] balancing analysis to determine ‘fundamental fairness” with- out regard for historical practice). Other recent ju- risprudence suggests the resurgence of history and tradition as primary factors in procedural due proc- ess review. See, e.g., Honda Motor Co. Ltd. v. Oberg, 512 U.S. 415, 421 (1994) (examining deviation from common law procedures in the awarding of excessive punitive damages). Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604, 619 (1990) (hold- ing that “jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of traditional notions of fair play and substantial justice”) (internal quotations omitted); Sun Oil Co. v. Wortman, 486 U.S. 717, 729- 30 (1988) (considering tradition and history to reaf- firm that Due Process Clause does not bar applica- tion of the forum state's statute of limitations to claims that in their substance are and must be gov- erned by the law of a different state). It is against this backdrop that history, tradition and principles of fundamental fairness give rise to a constitutionally protected right to some minimum level of trial court procedures, sufficient evidence in the record, and post-trial review to guard against arbitrary awards of damages. li B. Procedural Due Process Does Not Permit Unsupported Compensatory Damage Awards Judicial review of damage awards is a firmly em- bedded common law practice throughout this country and has its roots in English law and tradition. As Justice O’Connor stated plainly when this Court ap- plied due process guarantees to a punitive damage award in TXO Production Corp. v. Alliance Resources Corp., “courts at common law in England tradition- ally would strike any [damages] award that ap- peared so grossly disproportionate as to evidence ca- price, passion, or bias.” 509 U.S. 443, 476 (1993) (O'Connor, J., dissenting) (footnote omitted). Lord Mansfield was also led to comment that “there was no doubt but that the Court had the power of taking the opinion of a second jury in any case where the damages were excessive.” Ducker v. Wood, 99 Eng. Rep. 1092 (K.B. 1786). This was true in cases involv- ing both compensatory and punitive awards. In Oberg, where this Court struck down an exces- sive punitive damages award on procedural due process grounds, Justice Stevens noted that “[a]s in many early cases, it is unclear whether this case spe- cifically concerns punitive damages or merely ordi- nary compensatory damages,” and “[s]ince there is no suggestion that different standards of judicial review were applied for punitive and compensatory damages before the 20th century, no effort has been made to separate out the two classes of cases.” 512 U.S. at 423 n.2. Given the long, and seemingly undisputed, history in which compensatory and punitive damages were reviewed for excessiveness, and that no attempt at differentiation was made at common law to ele- 12 vate one type of recovery for the purpose of establish- ing a unique constitutional right, there is no basis for separate treatment under due process. Such a dis- tinction in the type of damages covered is unneces- sary and improper for purposes of analyzing the ade- quacy of procedures under the Due Process Clause. That this Court has not squarely addressed the issue of procedural due process with regard to com- pensatory damages should not suggest it does not apply. Indeed, the meaning of “due process of law” was sparsely discussed for the first hundred years following passage of the Fifth Amendment. Fur- thermore, lower courts, realizing the common law authority to overturn excessive awards, traditionally used remittitur to accomplish this same objective. See e.g., Crookston v. Fire Ins. Exchange, 817 P.2d 789, 802 (Utah 1991) (“After a jury returns a damage award in a civil case, the most common way for the losing party to challenge the amount of the award is to move for a new trial or remittitur....”). This Court has also stated that district courts’ “discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or condi- tioned on the verdict winner’s refusal to agree to a reduction (remittitur).” Gasperini v. Center for Hu- manities, 518 U.S. 415, 433 (1996) (holding that New York’s law controlling compensatory awards for ex- cessiveness or inadequacy can be given effect without violating the Seventh Amendment). The traditional review process of remittitur illus- trates a court’s power to review the procedures used in awarding compensatory damages, and that this review must be protected under due process. The fact that remittitur is used to reduce both compensa- 13 tory and punitive damages awards further undercuts any distinction that would warrant separate consti- tutional treatment. Similarities in how courts’ de- termine amounts for punitive damages and non- economic compensatory damages such as pain and suffering also demonstrate a need for constitutional safeguards. See Paul DeCamp, Beyond State Farm: Due Process Constraints on Noneconomic Compensa- tory Damages, 27 Harv. J. L. & Pub. Pol’y 231, 258- 61 (2003) (arguing that the arbitrary nature of non- economic damages awards demand constitutional due process protections); see also Robert Riggs, Con- stitutionalizing Punitive Damages: The Limits of Due Process, 52 Ohio St. L.J. 859, 907-08 (1991) (arguing that non-economic compensatory damages and puni- tive damages are so similar that they “cannot be ana- lytically distinguished”). Where procedures for awarding punitive damages parallel those for com- pensatory recovery, there is simply no reason to cre- ate a constitutional distinction. See Cooper Indus., Inc., v. Leatherman Tool Group, Inc., 532 U.S. 424, 446-47 (2001) (Ginsburg, J., dissenting) (“One million dollars’ worth of pain and suffering does not exist as a ‘fact’ in the world any more or less than one million dollars’ worth of moral outrage.”). Moreover, as this Court expressed in Haslip, the level of discretion allowed in determining punitive damages “is no greater than that pursued in many familiar areas of the law as, for example, deciding... appropriate compensation for pain and suffering or mental anguish. As long as the discretion is exer- cised within reasonable constraints, due process is satisfied.” 499 U.S. at 20 (footnote omitted). Justice Scalia, in TXO Production Corp., more directly con- cluded this essential point: “Procedural due process 14 also requires, I am certain, judicial review of the suf- ficiency of the evidence to sustain a civil jury verdict, and judicial review of the reasonablenes. of jury- awarded compensatory damages (including damages for pain and suffering).” 509 U.S. at 471 (Scalia, J., concurring). History, tradition, fundamental fairness and the past decisions of this Court all support the conclusion that due process requires courts to provide adequate procedural safeguards against the risk of erroneous deprivation of property through a compensatory damage award inconsistent with the evidence. This Court should, therefore, grant certiorari and remove any doubts as to this important constitutional right. II. ADAMAGE AWARD WITHOUT EVIDENTIARY FOUNDATION IS INCONSISTENT WITH DUE PROCESS. “(T]he Due Process Clause does not permit a State to classify arbitrariness as a virtue.” Haslip, 499 U.S. at 59. For this reason, this Court has rec- ognized that a state may not reach decisions on mat- ters of life, liberty or property without a basis for its action in the evidence. For example, in Schware v. Board of Bar Examin- ers of the State of New Mexico, the Court found that a state bar could not deny an applicant the opportunity to take the bar examination when all of the evidence produced at trial showed him to be of good moral character, while the Board “called no witnesses and introduced no evidence” and there was “nothing in the record which suggests that [the applicant] has engaged in any conduct during the past 15 years which reflects adversely on his character.” 353 U.S. 15 232, 236, 239 (1957). This Court has also found that a state may not imprison an individual for violating the conditions of his probation where the record “was so totally devoid of evidentiary support as to be inva- lid under the Due Process Clause of the Fourteenth Amendment.” Douglas v. Buder, 412 U.S. 430, 432 (1973) ( per curiam ); see also Superintendent, Mas- sachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455 (1985) (finding that revocation of “good time credits” must be supported by “some evi- dence” in order to satisfy the minimum requirements of procedural due process). In some instances, federal courts have reversed compensatory damage awards purely on the basis that the evidence was insufficient to support them, without invoking the Due Process Clause. For ex- ample, several courts have invalidated awards for emotional distress stemming from alleged constitu- tional violations when the evidence was vague and conclusory, and did not show the need for medicine, physical symptoms, psychological disturbance or counseling, loss of income or pecuniary expense, or other corroborative evidence. See Price v. City of Charlotte, 93 F.3d 1241, 1255-56 (4% Cir. 1996) (cit- ing Carey v. Piphus, 435 U.S. 247, 262-63 (1978); Ramsey v. American Air Filter Co., 772 F.2d 1303, 1313 (7 Cir. 1985); Hetzel v. County of Prince Wil- liam, 89 F.3d 169, 171-72 (4% Cir. 1996); Biggs v. Vil- lage of Dupo, 892 F.2d 1298, 1304 (7% Cir. 1990); Spence v. Board of Educ. of Christina Sch. Dist., 806 F.2d 1198, 1201 (3d Cir. 1986)). Indeed, this case is reminiscent of a lack of basic procedural rights that led the Tenth Circuit to re- verse a district court decision upholding multi- 16 million dollar sanctions imposed by the Federal Trade Commission. (FTC). See Federal Trade Comm’n v. Kuykendall, 312 F.3d 1329 (10% Cir. 2002), vacated on reh’g en banc, 371 F.3d 745, 763 (2004) (agreeing with the panel that the district court failed to set forth an adequate basis for arriv- ing at its $39 million figure). Before the corporations at issue presented their defense, the district court stated that it “sees no reason why we cannot be con- cluded with this matter by the close of business to- day,” a statement the Tenth Circuit characterized as “strong medicine.” Jd. at 1340. Noting the complete lack of evidence in the record to support a $39 mil- lion compensatory award intended for consumer re- dress, the court stated: Such a casual finding of millions of dollars without one iota of explanation does not meet the fact-finding requirement of Rule 52. The court supplied absolutely no indication how it arrived at this amount—no formula, no set of guidelines, no explanation, not even the most rudimentary reckoning of cause and effect to demonstrate the extent and the manner in which the consumers had been damaged. Ab- sent any explanation whatsoever, such an award is arbitrary and capricious. Id. at 1342. Such a timeline and approach, the Tenth Circuit held, “exceeds the limits of permissible discretion and dangerously approaches a complete violation of procedural due process.” Id. 17 Ill. WHAT DECIDING THIS CASE WILL AND WILL NOT DO A. This Case Presents the Opportunity to Clarify and Reaffirm That Due Process Does Not Permit Arbitrary Awards If this case is permitted to stand, then it will send a message that trial courts can act arbitrarily in their decision making without any significant pre- trial, post-trial, or appellate review. For example, courts could conduct trials without instructions, al- low only one side of a case to be heard, or permit a $12 million award based on $12 worth of evidence or no evidence at all as was the case here. Where, as here, a trial court has taken a “let it all go to the jury” approach and subsequently failed to conduct a thorough post-trial review to identify sup- port, or the lack thereof, for the resulting multimil- lion-dollar award, due process requires appellate consideration. If the West Virginia Supreme Court of Appeals does not exercise its authority in such a case, then it falls to this Court, as the highest au- thority, to consider whether such an award comports with the principles of the Due Process Clause. “When the absent procedures would have pro- vided protection against arbitrary and inaccurate ad- judication, this Court has not hesitated to find the proceedings violative of due process.” Oberg, 512 U.S. at 420 (citing Tumey v. Ohio, 273 U.S. 510 (1927); Brown v. Mississippi, 297 U.S. 278 (1936); In re Oliver, 333 US. 257 (1948); In re Winship, 397 U.S. 358 (1970)). While this Court has found that “[plunitive damages pose an acute danger of arbi- trary deprivation of property” due to a jury’s wide 18 discretion in choosing amounts and the potential for bias against big businesses, id. at 432, adequate pre- and post-trial review equally provides procedural safeguards against the danger of arbitrary compen- satory damage awards.” Here, where such meaning- ful review was not present, this Court has an oppor- tunity to clarify that fundamental principles of due process apply equally in such a context. B. This Case Will Not Unduly Interfere With State Judicial Sovereignty or Make This Court a Final Arbiter of Every Excessive Compensatory Damage Award This Court may be concerned that granting cer- tiorari in this case might result in a decision that ef- fectively requires states that do not have an inter- mediate appellate court to change their basic judicial structure or renders this Court the final arbiter of excessive compensatory damage awards. For the reasons noted below, the Court need not fear either result. In addition to West Virginia, seven states, Mon- tana, New Hampshire, Nevada, Rhode Island, South Dakota, Vermont, and Wyoming, as well as the Dis- trict of Columbia, have only a single appellate court or lack an appellate division. See National Center for State Courts, State Court Caseload Statistics, 2005: State Court Structure Charts (2006), available at http://www.ncsconline.org/D_Research/csp/ 2005_files/State%20Court%20Caseload%20Statistics %202005.pdf (providing state court structure charts, ? Moreover, application of procedural due process princi- ples to punitive damages would have little effect if punitive damages are allowed to bleed into compensatory damages. 19 including a summary of each court’s jurisdiction). According to the National Center for State Courts, of these eight jurisdictions, only West Virginia and New Hampshire do not provide their sole appellate court with mandatory jurisdiction over most civil cases. See id. While several other state supreme courts have purely discretionary review of civil cases, such as Tennessee, Texas, and, Wisconsin, in those states, there is an appeal as of right in the interme- diate appellate court. See id. In other words, West Virginia is only one of two states in the nation in which there is a high risk that an excessive verdict resulting from a lack of procedural safeguards may face absolutely no appellate scrutiny. Nevertheless, it is not amici’s contention that this Court needs to or should uproot West Virginia’s appellate structure and intrude upon its sovereign prerogative to design its judiciary. Rather, the lack of appellate review in West Virginia underscores the importance, indeed essential nature, of adequate procedures at the trial court level to guard against awards that are not tied to the evidence. Here, the trial court’s abrogation of its role in considering the appropriateness of summary judgment and its deci- sion to allow a multimillion dollar award to stand, despite expressing its concerns, demonstrates a vio- lation of due process. Finally, a decision in this case finding that the West Virginia Circuit Court’s procedures were in- adequate to satisfy due process will not place this Court in the position of acting as a state appellate court of last resort for excessive compensatory dam- age awards. This is not simply a case of an excessive compensatory award that a state court can address 20 through remittitur or other traditional means. This is a case of a court that went against its own clearly stated better judgment (even when there was ulti- mately no appellate review) and permitted an award to stand without any evidence supporting it. It pre- sents an ideal vehicle for this Court to instruct that the Due Process Clause requires state judiciaries to provide meaningful procedures to guard against awards that are not supported by the evidence. CONCLUSION For the foregoing reasons, amici curiae request that this Court grant the Petition for a Writ of Cer- tiorari in this action. Respectfully submitted, Victor E. Schwartz Cary Silverman Counsel of Record SHOOK, HARDY & BACON L.L.P. 600 14 Street, N.W., Suite 800 Washington, D.C. 20005 (202) 783-8400 Attorneys for Amici Curiae 21 Jan S. Amundson Quentin Riegel NATIONAL ASSOCIATION OF MANUFACTURERS 1331 Pennsylvania Avenue, N.W. Suite 600 Washington, D.C. 20004 (202) 637-3055 Robin S. Conrad NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337 Sherman Joyce AMERICAN TORT REFORM ASSOCIATION 1850 M Street, N.W. Suite 1095 Washington, D.C. 20036 (202) 682-1163 Donald D. Evans AMERICAN CHEMISTRY COUNCIL 1300 Wilson Boulevard Arlington, Virginia 22209 (703) 741-5000 Of Counsel Dated: October 22, 2007 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1485%3A5. Public record. Not legal advice.