Opposition Brief — Temple University Hospital v. Gallagher (No. 07-422)

A\ S> | ~ FILED

Lanna OCT 28 2007

# OFFICE OF THE CLERK

tn Oh e SUPREME COURT, U.S.

Supreme Court of the Gntled States

e

TEMPLE UNIVERSITY HOSPITAL,

Petitioner,

HUGH B. GALLAGHER, et al.,

Respondents.

e

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH OFFICE

+

BRIEF IN OPPOSITION

+

Shanin Specter

Counsel of Record

Andrew S. Youman

Charles L. Becker

KLINE & SPECTER,

A PROFESSIONAL CORPORATION

1525 Locust Street, 19th Floor

Philadelphia, Pennsylvania 19102

(215) 771-1000

Counsel for Respondents

THE LEX GROUP®°C ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 ¢ www.thelexgroupdc.com

QUESTIONS PRESENTED

: Whether this Court lacks jurisdiction

under Michigan v. Long, 463 U.S. 1032 (1983),

where the Pennsylvania courts affirmed a

compensatory damages judgment on _ state-law

grounds that are adequate and independent of

federal law?

2. Whether the principles enunciated in

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

408 (2003), are even implicated when (a) evidence

regarding a defendant’s post-malpractice effort to

alter and conceal medical records is admitted

without objection and the evidence is relevant to

negligence and causation, (b) no evidence is admitted

during trial regarding the defendant’s conduct

toward non-parties, (c) the jury unanimously awards

compensatory damages in an amount significantly

less than the evidence would have permitted, and (d)

in the second phase of a bifurcated trial, the jury

awards only $15,000 in punitive damages, a

judgment later reversed by the Pennsylvania courts

under Pennsylvania law?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........cssssssssssssssseeseeseeeee

TILT OP CONV TIIITG nsec cceccsssecoseves ii

TABLE OF AUTHORITIES. ..0..0....0.-sccscccsscsccessosseee iv

ER ET ARATE 1

STATEMENT OF THE CASE o..00.....cscecssessssssesssseesees 2

A. Temple’s neglect caused a

catastrophic brain injury...................++ 2

B. The resulting compensatory

C. Temple’s attempt to conceal key

evidence was discevered at trial........... 6

D. The jury instructions and closing

E. The jury found negligence and

awarded compensatory damages ....... 12

F. The jury awarded punitive

damages in the second phase of

IE cisscccinsccntnsiitniensstiaeainvabtaatstneiiianiie 14

H.

Further misrepresentations to

this Court: the stricken

GREER RSS edi + eon Ge atte Pe

The appellate process ................... 4

REASONS THE WRIT SHOULD BE DENIED

A.

CONCLUSION

This Court lacks jurisdiction

under the principles enunciated

in Michigan v. LON ..............:0000000

No State Farm violation occurred

when the punitive damages claim

i :

No constitutional error, let alone

a “structural error,” occurred

when the jury was permitted to

hear evidence and argument

regarding Temple’s post-

malpractice conduct...................00

Temple’s argument regarding the

“presumption” of harmlessness is

not worthy of this Court’s review..

SOSA EEE EEE ESSE SEE ETEH THESES ETH EERE SEE EES

iv

TABLE OF AUTHORITIES

Page(s)

CASES

A.B. v. Y.Z.,

878 A.2d 807 (NJ. 2005) .......ccccccccccsccssosccoeces 34

Arizona v. Fulminante,

499 U.S. BTS CIGSOT) cocccccscecessccccseees 2, 26, 27, 32

BMW of North America, Inc. v. Gore,

517 U.S. 559 (1996) ........... ial aiceaaias 24, 25

Burke v. Deere & Co.,

6 F.3d 497 (8th Cir. 1993) .......... cc essseeeee 30

Chapman v. California, |

Oe EF BOE iinicccccibstunicvaisitoasaiine 26, 32, 33

Drum v. Shaull Equipment and Supply Co.,

787 A.2d 1050 (Pa. Super. 2001)................... 22

Feld v. Merriam, :

485 A.2G T4B CPO. 1966)...0ccrccccccsesecosscrccerseceses 9

Francis v. Coughlin,

766 F. Supe. CIB (B.D. Y.) -cccccorevoccorrevcssovess 31

Francis v. Franklin,

ee IEE vc cncccniicuabanncasammensuinicadale 31

Gideon v. Wainwright,

Fee i STD Gack cain ssccacctcdenwinsnibchetiicrans 27

Harris v. Reed,

ns IE seintinncnstenseretecnioweenceinens 18

Hartford Underwrites Ins. Co. v. Williams,

936 So. 2d 888 (Miss. 2006).................cceeeeeees 30

Hilbert v. Roth,

149 A.2d 648 (Pa. 1959)............ccccccrscreoees 17,19

Hodges v. S.C. Toof & Co.,

833 S.W.2d 896 (Tenn. 1992) ................ eee 30

Kociemba v. G.D. Searle & Co.,

683 F. Supp. 1577 (D. Minn. 1988)............... 31

Michigan v. Long,

GE Te CRD secctccccrececcnvesesesosesnve 18, 22

O’Neal v. McAninch,

Oe Be CID onvecccciccccnensnesersesnevesess 33, 34

Opper v. United States,

Se ee OOD encticcnpuesnceiconeiesesssivensetonension 31

Phillip Morris USA v. Williams,

pF Ge Bg tk S , ; EE entES 25

Simpson v. Pittsburgh Corning Corp.,

O01 F.Bad STZ Ghd Cir. 1980) ..ccccccvescceresesecceeses 31

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

to E.On passim

Tumey v. Ohio,

Be le NED sirtidisnntcnccscinanseGneccinenctonineniin 27

Vasquez v. Hillery, :

rs I AED cosnveninscccseresinheemrsinntetinnens 27

Waller v. Georgia,

WT AY oa cecnesisstvarscsseosuesoceteasonss 27

Weider v. Hoffman,

238 F. Supp. 437 (W.D. Pa. 1965)........... 16, 19

Weidmer v. International Flavors & Fragrances,

No. C05-4138-MWB, 2007 WL 1959103

GUD Lowe. PU Sy BOOT ascdecessccccescssccsessccesees 31

CONSTITUTIONAL PROVISION

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STATUTES

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Ga. Code Ann. § 61... sekaiielesildeinedtameaass 29

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I RD ans: fdndniipncunaaneabadinneiedsdhehusbeanite 29

eae, TEE: TI FG ri iesscdesivsnieicnsesivciinsewessaenvsniae 29

Ky. Rev. Stat. Anm. § 411. 1G6.........ccsccocsccaressvcessscece 29

Lae. Cov. Come Aim... GUE. BBG... cncscccececessccseccsecessnees 29

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Nev. Rev. Stat. § 42.005... shih igdlsiaibaclecadhdntainlacenomiaimiianiacen 29

5.C. Code Amm. $ 16-33-135...........cccccccccoccccsccescccssceer 29

Tex. Civ. Prac. & Rem. § 41.009 ......ccccccsssseescsssseseee 29

OTHER AUTHORITIES

Restatement (Second) of Torts § 902............0.... 17, 20

Gensler, Steven S.,

PREJUDICE, CONFUSION, AND THE BIFURCATED

CIVIL JURY TRIAL: LESSONS FROM TENNESSEE,

he Re Bi B,D nine scenencicictecbeseidaciicnsccees 30

INTRODUCTION

The writ of certiorari is reserved for those

cases that involve fundamental or urgent issues of

federal law. This petition presents neither. It does

not even present an issue of federal law. Rather, it

represents the latest chapter in a tortfeasor’s effort

to postpone responsibility for its neglect that caused

a catastrophic brain injury to a college student.

Rather than accepting that the large compensatory

verdict was a function of its proven neglect and the

devastating injuries suffered by Hugh Gallagher, IV,

Temple University Hospital (“Temple”) now

supposes that the verdict must in actuality have

represented an improper award of punitive damages.

Temple’s latest effort to manufacture appellate

issues should be rejected and the petition denied.

In fact, the jury did assess $15,000 in punitive

damages against Temple in a second phase of trial

for Temple’s post-malpractice efforts to alter key

medical records and then hide those records. until

trial. On appeal, however, the Pennsylvania

Superior Court reversed the punitive damages

judgment under the Pennsylvania law that a post-

incident cover-up does not give rise to a claim for

punitive damages. At the same time, the Superior

Court affirmed the compensatory judgment because,

inter alia, all evidence related to the altering and

hiding of records had been properly admitted

without objection before Plaintiffs sought leave to

amend their complaint to plead punitive damages.

The Superior Court twice affirmed the compensatory

verdict under Pennsylvania law. The Pennsylvania

Supreme Court twice declined to alter those rulings.

2

Temple now seeks to characterize this case as

involving multiple issues of federal constitutional

law — it says the allowance of the punitive damages

claim violated this Court’s decision in State Farm

Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003),

and hence a “structural error” occurred mandating a

new trial under Arizona v. Fulminante, 499 U.S.

279, 306-08 (1991), and otherwise the Superior Court

misapprehended the proper method for evaluating

trial error. These arguments mistake the holdings

in these cases in an effort to manufacture

constitutional issues. An analysis of what this Court

actually held in those cases, in the context of what

actually occurred below, demonstrates that the

petition lacks merit and should be denied.

STATEMENT OF THE CASE

A. Temple’s neglect caused a catastrophic

brain injury.

This is a medical malpractice case arising out

of care provided to Hugh Gallagher, IV, then aged

19, in the Temple University Hospital Burn

Intensive Care Unit (BICU) on June 7, 2000. Hugh

had been a_ student at the University of

Pennsylvania and had intended to pursue a career in

medicine. Pennsylvania Superior Court Joint

Reproduced Record (“Pa. Rec.”) 637-38, 938. During

his summer break, he suffered severe burns in an

apparent suicide attempt and was admitted to the

BICU for treatment. Hugh had a tracheotomy in

place because he was having difficulty breathing

independently and was at risk for airway

compromise from a mucous or blood clot. Pa. Rec.

116-17. The nurses responsible for Hugh knew that

he was at risk for airway compromise, and that

Hugh required suctioning at least every hour and as

needed to ensure that he had a functioning airway.

Pa. Rec. 116-17, 926-28.

Because of his risk for airway compromise,

Hugh received “one-to-one” nursing care, meaning

that the nurse responsible for Hugh was assigned

solely to him and had no other patient

responsibilities. Pa. Rec. 113-15. On June 7, 2000,

that one to one nurse was Janice Lawson. Id. The

two other nurses on duty that night were responsible

for the only three other patients in the unit. Jd.

_ At approximately 11:40 p.m., Hugh’s airway

became plugged and he was unable to breathe. His

vital signs began to decline, causing his alarms to

sound both in Hugh’s room and out at the BICU’s

central nurse’s station. Pa. Rec. 116-18, 191-98.

Despite the facts that Hugh had a one-to-one nurse

solely responsible for him, and that the two other

nurses on the unit were responsible for only three

other patients, nobody responded to Hugh’s alarms

for a period of four to ten minutes. Pa. Rec. 506-08,

924. During that time, Hugh was unable to breathe

due to the blockage of his airway.

At trial, Temple would attempt to explain the

failure of the nurses to respond to Hugh’s alarms by

claiming that there were critical patient emergencies

occurring in nearby rooms in the unit such that they

did not know that Hugh’s alarms were sounding. Pa.

Rec. 915-19. The records of the patients in these

rooms showed that no emergencies had occurred.

Pa. Rec. 165-67, 285-86, 494-98. The only life-

threatening event to occur that night was Hugh

Gallagher’s blocked airway. Pa. Rec. 497-98.

By the time Hugh was discovered, he was

pale, had no heart rate and was not breathing. Pa.

Rec. 241-42. Although he was_ ultimately

resuscitated, he suffered a severe anoxic brain injury

as a result of the delay in responding to his alarms.

Pa. Rec. 506-09.

Hugh has been institutionalized since that

day. He cannot live independently. He cannot

accurately recite the day of the week. His cognitive

and memory deficits are so severe that he will never

be able to hold a job and will always require the care

of others. He has significant gait and balance

dysfunction and other physical injuries as a result of

his brain injury. Pa. Rec. 551-52, 564-70, 703-04.

No compensation was sought for me burns, from

which he has recovered.

B. The resulting compensatory damages.

The brain injury caused by Temple’s

negligence resulted in a substantial compensatory

damages verdict because the jury heard undisputed

evidence that Hugh Gallagher will have to live in a

supervised setting and receive medical care for the

rest of his life and because of his resulting loss of

earnings and earnings capacity. The economic

damages alone were as high as $27,387,920. These

economic damages were divided into three

categories: 1) past medical expenses; 2) future

medical and custodial expenses; and 3) loss of

earnings and earning capacity.

Past medical expenses totaling $600,000 were

stipulated. Pa. Rec. 767-68. As to future medical

and custodial care, an economist and life care

planner gave uncontested testimony that the costs of

such future care would be as much as $12,933,159.

Pa. Rec. 587-88; 737-38. Hence the uncontested

economic damages exceeded $13,500,000.

The only contested element of economic

damages was loss of earnings and earning capacity.

The disagreement had to do with what level of

education and training Hugh Gallagher would have

been able to achieve given his emotional difficulties

prior to his brain injury. It was undisputed that

Hugh had graduated from St. Joseph’s Preparatory

School with a cumulative grade point average of 3.55

and had completed his first year of college at the

University of Pennsylvania. Pa. Rec. 885-86. Hugh

wanted to go to medical school after graduating from

Penn and become a neurosurgeon, an intention that

was documented on Hugh’s SAT records. Pa. Rec.

637-38, 771. Plaintiffs’ economist testified that

Hugh’s loss of future earning capacity (wages plus

fringe benefits) ranged from $3,228,413 (college

graduate) to $13,854,761 (neurosurgeon) depending

upon his ultimate level of achievement. Pa. Rec.

727-36.

Of course, the jury also was to consider

damages for intangibles such as pain and suffering,

loss of life’s pleasures, and disfigurement. As to

these elements, there was significant testimony by

Hugh and by Plaintiffs’ experts showing the horrific

effect that the June 7 anoxic event had on Hugh’s

life. Pa. Rec. 546-91, 691-707.

C. Temple’s attempt to alter and conceal

key evidence was discovered at trial.

After the malpractice occurred, Temple

personnel altered and concealed crucial medical

records that documented what happened to Hugh on

June 7.

First, Nurse Lawson used white-out on Hugh’s

original flowsheet (documenting his vital signs) to

obliterate and alter data that detailed the events of

her discovery of Hugh and the resulting code. For

example, Nurse Lawson acknowledged at trial that

she substituted a heart rate of 38 for a time at which

the original flowsheet reflected that Hugh’s heart

rate was zero. Pa. Rec. 205-12, 267-70. In her effort

to re-portray the timing of what had occurred, she

obliterated not one but seven separate entries in the

flowsheet. Jd. Even Temple’s nursing expert

testified that it was illegal to white-out records in

the manner done by Nurse Lawson. Pa. Rec. 943-44.

Second, Nurse Lawson permitted the

destruction of key data from Hugh’s room monitor by

failing to print out the data in a timely fashion. This

room monitor contained a minute-by-minute account

of Hugh’s vital signs and would have provided the

best evidence of what had occurred during the

critical time period. Because Nurse Lawson neither

printed this stored data nor documented it in Hugh’s

chart, the data was lost and the Gallaghers were

deprived of the means to conclusively disprove the

version of events created with white out by Nurse

Lawson. Pa. Rec. 234-25, 263.

Third, Temple’s nursing supervisor removed

Hugh’s original flowsheet (now altered by white-out)

from his medical chart and put the original in a

sealed envelope in a drawer in the risk manager’s

office. Pa. Rec. 408. This was the only document

from the foot-thick chart to be removed by Temple

management. Pa. Rec. 402-03. The risk manager

replaced the original record with a photocopy. Pa.

Rec. 399-400. Because the white-out had been used

in a careful ‘manner, it was impossible to tell from

the photocopy that the original had been altered.

Pa. Rec. 1592.

Fourth, Temple provided the photocopy (not

the original) to Plaintiffs’ counsel during discovery.

Temple then claimed on six separate occasions over

the next three years that the original could not be

found. Pa. Rec. 203, 234-35, 408-10. Temple’s risk

manager knew she had the original flowsheet

throughout the litigation. Pa. Rec. 402-09.

Fifth, Temple personnel told the Gallaghers

and the court that no alterations had been made in

the medical records. When Nurse Lawson was

deposed, she testified under oath that she had not

altered any entries in the medical records. Without

the benefit of the original flowsheet, the Gallaghers

were in no position to challenge this testimony.

Nurse Lawson would later acknowledge at trial that

her deposition testimony was false. Pa. Rec. 205-12,

267-70. |

Sixth, Temple attempted to conceal the

existence of the original flowsheet not only from

Plaintiffs’ counsel but also from its own counsel.

When asked about the whereabouts of the original

flowsheet by defense counsel, Temple risk

management falsely informed its own counsel that it

could not find the flowsheet even though the risk

manager knew she had the record all along. Pa. Rec.

447-48.

Seventh, when the risk manager removed the

original flowsheet from the chart, she placed a post-

it note in the original chart stating that the original

flowsheet was in her office. Pa. Rec. 400. However,

every time the chart was produced for deposition or

photocopied for production to plaintiffs, the post-it

note was removed from the original chart by Temple

so that Plaintiffs would not see it and become aware

that the original flowsheet existed and was located

in the risk management office. Pa. Rec. 1594-95;

946-49. The post-it note was revealed at trial on a

photocopy of the chart sent to a Temple expert

witness. Pa. Rec. 946-49.

As a result of the foregoing conduct, it was not

until the first day of trial that the Gallaghers

became aware that white-out had been used by

Nurse Lawson to alter the original record. It was

not until the second day of trial that the Gallaghers

became aware that the original flowsheet had been

in the custody of Temple risk management all along.

Significantly, all of the testimony regarding

these issues came into evidence without objection by

the defense and before Plaintiffs requested that the

complaint be amended to allege punitive damages.

The evidence was properly admitted because it was

relevant to negligence and causation, as it explained

why Plaintiffs were unable to show an exact time

line surrounding the oxygen deprivation suffered by

Hugh. Appendix (“App.) 9a, 20a. It was also

relevant to spoliation and provided the foundation

for the “adverse inference” charge that the trial

judge would give the jury, advising them that the

jury could assume for purposes of their deliberations

that the altered entries and lost data would have

contained information unfavorable to Temple. App.

34a.

Only after all of this evidence had been

admitted, without objection, was a request for

amendment to plead a punitive damage claim made

and granted. Not a single piece of additional

evidence was admitted as a result of the allowance of

the punitive damages claim. Consistent with Feld v.

Merriam, 485 A.2d 742 (Pa. 1984), the trial court

bifurcated the case so that the jury would not hear

evidence of Temple’s net worth in the compensatory

phase and would consider imposing punitive

damages only if a predicate question were answered

in the affirmative.

D. The jury instructions and_ closing

speeches.

At the close of the trial’s first phase, the jury

was given a verdict slip that contained four

questions. Pa. Rec. 1382-83. Questions 1 and 2

required the jury to assess breach of duty, causation,

10

and the existence of compensatory damages.

Question 3 asked the jury to state the amount of

compensatory damages sustained “as a result of the

negligence of Temple University Hospital.” (Id.)

Only after the jury had awarded compensatory

damages was the jury to answer Question 4, the

threshold question on punitive liability: “Was the

conduct of Temple University Hospital willful or

wanton or with reckless indifference to the rights of

Hugh Gallagher, [V?” Id. The verdict slip did not

ask the jury to punish Temple.

Significantly, the trial court did not give

general instructions applicable to punitive liability

and the jury was never advised that Question No. 4

was a predicate for assessment of punitive damages.

Instead, the judge instructed them only regarding

the elements of compensatory damages they were to

consider. He stated that the jury was only to award

compensatory damages sustained as a result of

Temple’s negligence. Pa. Rec. 1274-77, 1290-91,

1392-93. He specifically instructed the jury that

they were not there to punish anyone. Pa. Rec. 1270,

1285.

During his closing speech, Plaintiffs’ counsel

presented an argument based upon the evidence and

the reasonable inferences to be drawn from the

evidence. Regarding the evidence showing Temple’s

effort to alter and conceal crucial medical records, it

was essential that Plaintiffs’ counsel address. this

evidence so that the jury would understand why

Plaintiffs could not demonstrate the precise timing

of Hugh’s code and Temple’s inadequate response.

Plaintiffs’ counsel argued as follows:

11

How do we know that they did the

wrong thing separate and apart from

the records themselves? Their conduct.

Their conduct. 450 years ago a fellow in

England named Shakespeare wrote

that the guilty flee when no one

pursues. He wrote Oh, what a tangled

web we weave when first we try to

deceive. Is that what happened here?

Yes, itis .... Now, what was the exact

timing here? I should be able to tell you

that because that’s part of my burden,

but I can’t tell you the exact timing and

I regret that. But that’s not. my fault.

Because they destroyed the

information.

Pa. Rec. 1173-75. This argument was proper

because the cover-up evidence was relevant to

negligence and causation and to the spoliation

instruction that permitted the jury to make an

adverse inference from Temple’s actions. In any

event, Temple did not object.

Temple now argues that Plaintiffs “repeatedly

commingled the negligence and punitive damages

issues” in the closing speeches. Certiorari Petition

(“Cert. Pet.”) 7. In fact, there was not any

“commingling” because all of the evidence introduced

before the jury was relevant to negligence and

causation. Further, the jury never was instructed on

punitive damages and instead was specifically

instructed only to determine compensatory damages.

12

Temple now also complains that Plaintiffs’

counsel used the phrase “cover-up” in his closing

speech. Cert. Pet. 7. That phrase represented a fair

characterization of Nurse Lawson’s use of white-out

to change multiple entries in the medical record, of

the risk manager’s conduct in removing the original

record and replacing it with a photocopy that

concealed the alteration, and of Temple’s failure to

disclose the original document during years of

litigation until compelled to do so at trial. In any

event, Temple’s counsel did not object to the

statement and therefore waived any complaint based

upon it. Pa. Rec. 1175.

E. The jury found negligence and awarded

compensatory damages.

The jury returned a unanimous verdict that

Temple had committed negligence in caring for Hugh

and awarded $20 million in compensatory damages.

This amount was $7 million less than the evidence of

economic damages alone supported, not counting the

pain and suffering and other intangible damages

that the jury also considered.

The jury also answered “Yes” to Question No.

4 on whether Temple had committed willful, wanton

or reckless conduct, the predicate to further

consideration of punitive liability and damages.

When the jurors were polled, all stated their

agreement with the verdict and the verdict was

recorded. Pa. Rec. 1314-17.

The trial court instructed the jury that they

should return the following Monday to assess

13

punitive damages and was ready to excuse them

when one of the jurors raised her hand and uttered

the following: “I think the verdict that we came to,

because we half on one and half on the other, the

question -.” Pa. Rec. 1317-18. Wher it became

apparent that the juror may have been speaking

about. the jury’s deliberations, the trial court

interrupted the juror and instructed the jury to

return on Monday. Pa. Rec. 1318-19.

As the Pennsylvania Superior Court later

explained, the judge’s action was proper because the

verdict was unanimous, there had been no evidence

of juror confusion, and Pennsylvania law does not

permit a trial court to inquire into the jury’s

deliberative process under those circumstances.

App. 24a. The Superior Court rejected Temple’s

“self-serving interpretation” about the juror’s

utterance and noted that the utterance “at best is

ambiguous and could have just as easily have been

interpreted to indicate that the jury had difficulty in

reaching a consensus on liability or the amount of

compensatory damages. In any event, the

deliberative process is not to be inquired into in the

absence of evidence of clear confusion.” Id.

In its certiorari petition, Temple incorrectly

says that a juror asked to speak with the judge

privately following the verdict and the judge denied

the request. Cert. Pet. 9. In fact, the juror in

question asked to speak with the judge before the

verdict, not afterwards. Pa. Rec. 1343. Temple has

made this misstatement on multiple occasions, and

repeatedly has been corrected.

14

F. | The jury awarded punitive damages in

the second phase of trial.

The jury returned the following week to hear

evidence as to Temple’s net worth and to decide

whether to award punitive damages and the amount

of any such award. Before deliberating, the jury was

instructed both by the trial court and by Plaintiffs’

counsel that they were free to award zero dollars if

they chose. Pa. Rec. 1366, 1373. Temple’s counsel

told the jurors in his speech that awarding punitive

damages would not punish Temple, but would only

punish the North Philadelphia community that

Temple serves. Pa. Rec. 1371-72. After

deliberations, the jury awarded $15,000 in punitive

damages. Pa. Rec. 1375-76.

Temple’s certiorari petition mischaracterizes

the record by stating that “[t]he jury found petitioner

liable for negligence, decided that punitive damages

were warranted, and awarded $20 million in

damages.” Cert. Pet. 1. As made clear above, the

actual course of events was somewhat different. The

jury initially found that Temple negligently caused

Hugh Gallagher’s injuries and awarded $20 million

in compensatory damages. Only thereafter did the

jury reach Question No. 4, the predicate question to

finding punitive liability and damages. In

answering “yes” to that question, the jury did not

directly address the issue of punitive damages let

alone find that they were warranted. At no time was

the jury asked to determine whether “punitive

damages were warranted.” Rather, the jury did not

actually decide that punitive damages were

warranted until it imposed them.

15

In a similar vein, the petition later states the

jury initially decided whether Temple’s conduct was

“so reprehensible as to warrant punitive damages.”

Cert. Pet. 2. The jury never decided any such

question during its initial deliberations, only

Question No. 4 as_ stated. This subtle

mischaracterization: of the trial proceedings

represents another effort to reinvent what actually

happened.

G. Further’ misrepresentations to this

Court: the stricken affidavits.

Following the verdict, attorneys for Temple’s

excess insurance carrier conducted ex parte

interrogations of at least two of the jurors. Temple

received no permission from the trial judge to

conduct these interrogations. Plaintiffs’ counsel

were not present or invited. The claimed product of

these interrogations is two affidavits from the excess

carrier's attorneys — not the jurors — who claim to

have conducted the interrogations. The affidavits

purported to paraphrase information supposedly

given by these jurors in response to unknown

questions. App. 26a. However, the affidavits were

obtained in clear violation of Pennsylvania law and

their content was inadmissible hearsay. In fact, the

affidavits were so improper that when the trial court

confronted Temple’s counsel with the impropriety of

Temple’s conduct in obtaining them, he agreed that

the affidavits should be struck from the record. He

stated: “We don’t need to get to the affidavits at all.

If you want to remove the affidavits from the brief,

it’s okay with me... .” Jd. The trial judge struck

16

the affidavits, and the Superior Court held that

Temple could not base any argument on them. Jd.

Improperly, Temple continues to present

argument based upon these affidavits. Cert. Pet. 9.

Since Temple continues to reference non-record

material, it should be noted that Temple’s assertion

that one of the affidavits came from a juror is

absolutely false. Both affidavits are from the excess

carrier's attorneys. Jd. Further, the character-

ization of the judge as “refusing” to consider the

affidavits is belied by the fact that Temple’s own

counsel agreed that the affidavits should be struck

from the record. Jd. In view of Temple’s other

mischaracterizations in this certiorari petition,

Temple’s misrepresentations to the Court regarding

the affidavits raise unfortunate concerns about

candor to the Court and underscore the reasons that

certiorari should be denied.

H. The appellate process.

After the trial court affirmed the verdict in all

respects, the Superior Court, in an unpublished

opinion, reversed the judgment for punitive damages

under the Pennsylvania law that the right to

punitive damages is “a mere incident to a cause of

action” and that punitive damages could only be

based on the subject matter of the action, not on a

post-incident cover-up. App. 18a-19a. The Superior

Court established Pennsylvania law by citing Weider

v. Hoffman, 238 F. Supp. 437 (W.D. Pa. 1965), in

which a federal district court described Pennsylvania

law on the availability of punitive damages and

quoted the Pennsylvania Supreme Court’s decision

17

in Hilbert v. Roth, 149 A.2d 648, 652 (Pa. 1959). The

Superior Court then cited the Pennsylvania statute

providing for punitive damages in medical

malpractice cases, 40 P.S. § 1303.505(a), and the

common-law principles summarized in Restatement

(Second) of Torts §902 to further establish

Pennsylvania’s requirement that punitive damages

must be based upon the underlying cause of action.

App. 19a. 3

The Superior Court’ affirmed __ the

compensatory award under Pennsylvania law as

well. In particular, the Court rejected Temple’s

claim of prejudice on grounds that “all of the

evidence concerning the alleged cover up, which

Appellant now complains tainted the jury, was

relevant to liability and was admitted without

objection by Appellant before the Appellees orally

requested an amendment of the complaint to include

a claim for punitive damages.” App. 20a. The

Superior Court added that because the trial judge

bifurcated the trial, no evidence of Temple’s net

worth or other evidence solely relevant to punitive

damages was heard by the jury in the compensatory

phase, and that the verdict, “while significant, was

still seven million dollars less than the asserted

economic damages submitted into evidence by the

Appellees.” App. 20a-21a.

Temple appealed to the Pennsylvania

Supreme Court, which entered an Order remanding

the case to the Superior Court “with instructions to

review the record and reconsider whether Petitioner

has demonstrated that it has suffered prejudice from

the trial court’s error.” App. lla. After receiving

18

additional briefs from the parties, the Superior

Court, in another unpublished opinion, again

affirmed the judgment on compensatory damages,

explaining that there was no prejudice and no

improper “intertwining” of compensatory and

punitive damages given (1)the absence of any

evidence solely relevant to punitive damages, (2) the

jury instructions that focused solely on

compensatory damages, (3) the absence of any

reference to “punishment” or “punitive damages” in

either closing speeches or the verdict slip, and (4) the

verdict for an amount substantially less than would

have been supported by the evidence. App. 6a-9a.

Temple again petitioned the -Pennsylvania

Supreme Court for allowance of appeal. The

Pennsylvania Supreme Court denied Temple’s

petition on June 28, 2007, and this petition ensued.

REASONS THE WRIT SHOULD BE DENIED

I. This Court lacks jurisdiction under the

principles enunciated in Michigan uv.

Long.

This Court long has held that it will not

consider an issue of federal law on review from a

judgment of a state court if the judgment rests on a

state-law ground that is independent of the federal

issue and provides an adequate basis for the court’s

decision. See Michigan v. Long, 463 U.S. 1032, 1040-

41 (1983). This jurisdictional principle is grounded

in respect for the independence of state courts and

the desire to avoid rendering advisory opinions. See

id.; Harris v. Reed, 489 U.S. 255, 260 (1989). Here,

19

Temple claims that a constitutional error occurred

when the trial court allowed the jury to hear

evidence of Temple’s post-malpractice conduct and

allowed a punitive damages claim on the basis of

that evidence. The Superior Court analyzed and

decided that claim under state law principles that

are wholly independent of federal constitutional law.

App. 2a, 13a. Because those grounds are adequate

and independent of federal law, certiorari should be

denied.

The Superior Court’s decision that the

evidence was properly allowed was based entirely on

state law: the evidence was relevant to negligence

and causation and it came in without objection,

causing the waiver of any subsequent objection

Temple might have wished to interpose. App. Qa,

20a.

The Superior Court also disallowed the

punitive damages claim on state law principles.

Pennsylvania law provides that “no award for

punitive damages may be made where actual

damage has not been suffered.” Hilbert v. Roth, 149

A.2d 648, 652 (Pa. 1959). Accordingly, “[t}he right to

punitive damages is a mere incident to a cause of

action — an element which the jury may consider in

making its determination — and not the subject

(matter) of the action in itself.” Id. The Superior

Court invoked those principles by citing Weider, in

which a federal court, exercising diversity

jurisdiction, discussed Pennsylvania’s law on

punitive damages and quoted the above passage

from Hilbert. App. 19a. The Superior Court also

relied on the Pennsylvania statute governing the

20

allowance of punitive damages claims in medical

malpractice actions. See 40 P.S. § 1303.505(a). It

additionally relied on the Restatement (Second) of

Torts § 902, which summarized the common-law

principle that damages must flow from the injury

giving rise to the claim. The entire analysis flowed

from state-law principles.

As the Superior Court did not apply federal

law in reaching this decision, either explicitly or

implicitly, there was no reason for the Court to

specifically state that it based its decision on state

law. No ambiguity about the basis for the Superior

Court’s decision can be inferred under these

circumstances, and Temple’s contrary suggestion is

without merit. Cert. Pet. 12.

Temple proposes an alternate reality where

the Superior Court’s opinion “recognized that the

punitive damages claim could not pass muster under

State Farm” (referring to State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408 (2003)).” Cert. Pet. 1,

12. This argument is wrong on its face. The best

evidence of what the Superior Court “recognized” is

the opinion itself, which neither mentioned State

Farm nor discussed any of the concepts that have

been explored in this Court’s punitive damages

jurisprudence. Further, the issues addressed in

State Farm — the admissibility of a defendant’s out-

of-state conduct against non-parties when

determining the amount of punitive damages, and

the constitutionally-permitted amount of a punitive

damages verdict relative to an _ underlying

compensatory damages verdict — were not even

present in this case. State Farm, 538 U.S. at 422-23.

21

The sole basis for Temple’s assertion is that a

passage of the Superior Court’s opinion uses

language that looks similar to language used in

State Farm. Cert. Pet. 12. This is a frivolous effort

to fabricate a constitutional basis for the Superior

Court’s decision. As noted above, the Superior Court

was dealing with a defendant’s post-malpractice

attempt to conceal and alter the evidence of its

malpractice. It was not dealing with a defendant’s

conduct against non-parties, and certainly not a

grossly excessive punitive damages award relative to

compensatory damages. State Farm was not the

unstated basis for the Superior Court’s decision.

Federal law was also absent from the Superior

Court’s decision that Temple suffered no prejudice

from any purported error. The Superior Court noted

that all of the evidence about which Temple

complained was relevant to negligence and

causation, and admitted without Temple’s objection

before Plaintiffs sought to add punitive damages;

hence the evidence was properly admitted and

Temple waived any contrary argument. App. 20a.

In addition, because the trial court bifurcated the

trial to assure that evidence of Temple’s net worth

would not be admitted, “the jury did not hear any

evidence in the compensatory phase that they would

not have otherwise heard had there been no punitive

damages claim.” Jd. “Furthermore, the amount of

the compensatory damages, while significant, was

still seven million dollars less than the asserted

economic damages submitted. into evidence by the

Appellees.” Jd. 20a-21a.

22

Federal law was likewise absent when the

Court rejected Temple’s ‘jury investigation”

argument because Pennsylvania law provides that

verdicts may not be investigated absent clear

evidence of jury confusion, see Drum v. Shaull

Equipment and Supply Co., 787 A.2d 1050 (Pa.

Super. 2001), and no such confusion existed in this

case given the unanimous verdict and the fact that

the jurors were individually polled. App. 25a. The

Court then found that Temple had waived any

argument based on affidavits secured from lawyers

for Temple’s excess carrier because Temple had

consented to the striking of those affidavits, which

were inadmissible in any event under the

Pennsylvania Rules of Evidence. App. 26a.

In summary, there is not a whiff of federal law

in the Superior Court’s opinion affirming the

compensatory damages verdict. This Court should

decline jurisdiction under Michigan v. Long.

II. No State Farm violation occurred when

the punitive damages claim was allowed.

Temple’s central premise is that the allowance

of the punitive damages claim was “constitutionally

invalid” under State Farm. Cert. Pet. 1,12. Temple

is wrong. State Farm deals with whether evidence of

a defendant’s conduct toward non-parties is

admissible in determining the amount of punitive

damages, and the constitutionally permitted

relationship between the amount of punitive

damages and the underlying compensatory verdict.

State Farm, 538 U.S. at 423-25. It has nothing to do

with whether a defendant can be subject to punitive

23

damages for its post-malpractice efforts to conceal

the evidence of its malpractice.

State Farm’s factual and procedural history

confirms this point. In State Farm, insureds brought

an action in Utah against an automobile liability

insurer for its refusal to settle a wrongful death suit.

The plaintiffs asserted claims for bad faith refusal to

settle, fraud, and intentional infliction of emotional

distress. They sought both compensatory and

punitive damages. Before trial, State Farm moved

in limine to exclude evidence of alleged conduct that

occurred in unrelated cases toward unrelated

persons outside of Utah. The trial court denied the

motion, reasoning that such evidence was admissible

to determine whether State Farm’s conduct was

intentional and sufficiently egregious to warrant

imposition of punitive damages. The trial court also

ordered a bifurcated trial. The first phase only

decided whether State Farm committed bad faith by

unreasonably refusing to settle the case. The second

phase determined the plaintiffs’ claims for fraud and

intentional infliction of emotional distress, their

compensatory damages, and the issues of punitive

liability and damages. See id. at 413-16.

It is worth repeating that last sentence to

emphasize why State Farm does not prohibit what

happened here. In State Farm, the second phase of

trial determined plaintiffs’ claims for fraud and

intentional infliction of emotional distress, their

compensatory damages, and the issues of punitive

liability and damages. In other words, what

happened in State Farm is exactly what Temple says

is unconstitutional under State Farm. Had this

24

Court felt that that the Due Process clause

mandated a complete bifurcation of compensatory

damages issues from punitive liability issues, the

Court would surely have said so. Instead, the Court

said nothing on that topic and focused its attention

on other matters. State Farm itself provides the best

evidence against Temple’s use of State Farm in this

case.

In any event, during the second phase of the

State Farm trial, plaintiffs admitted evidence

pertaining to State Farm’s practices over 20 years in

numerous states against numerous persons. See id.

Most of the practices bore no relation to the

automobile insurance policy at issue in the case. As

this Court would explain, the State Farm trial “was

used as a platform to expose, and punish, the

perceived deficiencies of State Farm’s operations

throughout the country.” Jd. at 420. After the

second phase, the jury awarded $2.6 million in

compensatory damages and $145 million in punitive

damages. See id. at 415.

The issue raised by this massive punitive

damages verdict relative to compensatory damages

was the scope of procedural and substantive

limitations on punitive damage awards imposed by

the Due Process Clause and the Fourteenth

Amendment. See id. at 416. Building principally on

this Court’s decision in BMW of North America, Inc.

v. Gore, 517 U.S. 559 (1996), this Court reversed the

$145 million punitive damages award on grounds

that it amounted to an arbitrary and unreasonable

deprivation of property. The Court explained that a

State cannot punish a defendant for out-of-state

25

conduct against non-parties and that only conduct

with a “nexus to the specific harm suffered by the

plaintiff’ could form the basis for punitive damages.

Id. at 422-23. “Due process does not permit courts,

in the calculation of punitive damages, to adjudicate

the merits of other parties’ hypothetical claims

against a defendant under the guise of the

reprehensibility analysis.” Id. Absent this

limitation, defendants would be subject to multiple

punitive damages awards for the same conduct. See

id. In addition, while no bright-line can be imposed

regarding the permitted ratio of punitive to

compensatory damages, “in practice, few awards

exceeding a single-digit ratio between punitive and

compensatory damages .. . will satisfy due process.”

Id. at 425. Central to the Court’s analysis was the

notion that a person should receive “fair notice” of

the conduct that will subject him to punitive

damages and of the severity of the penalty that a

State may impose. /d. at 417.

State Farm and its progeny, most recently this

Court’s decision in Phillip Morris USA v. Williams,

127 S. Ct. 1057 (U.S. 2007), provide a constitutional

framework for determining the admissibility of

evidence of a defendant’s conduct toward non-parties

and the permitted relationship between punitive and

compensatory damages to avoid grossly excessive or

arbitrary punitive damage awards. That framework

has no relevance to this case, which does not involve

Temple’s conduct toward non-parties of any kind.

The instant case does not even raise a State Farm

issue, let alone involve a State Farm violation.

26

Ill. No constitutional error, let alone a

“structural error,” occurred when the

jury was permitted to hear evidence and

argument regarding Temple’s _post-

malpractice conduct.

Temple next argues that allowing the jury to

hear evidence and argument regarding Temple’s

post-malpractice conduct (a purported State Farm

error) amounted to a “structural error” mandating a

new trial under this Court’s decisions in Chapman uv.

California, 386 U.S. 18, 21-22 (1967), and Arizona v.

Fulminante, 499 U.S. 279, 306-08 (1991). Cert. Pet.

12-13. This argument is wrong for multiple reasons.

By way of background, Chapman and

Fulminante are seminal cases regarding the review

of constitutional errors that occur during trial,

primarily in criminal cases. In Chapman, this Court

held that a constitutional error occurring in a

criminal trial did not automatically require reversal

of the verdict; instead, such error may be held

harmless if the court concludes that the error “was

harmless beyond a reasonable doubt.” Chapman,

386 U.S. at 21-22, 24. In Fulminante, this Court

characterized the constitutional errors subject to

Chapman review as “trial errors” — errors that occur

during the presentation of the case to the jury and

that “may therefore be quantitatively assessed in the

context of the other evidence presented in order to

determine whether its admission was harmless.”

Fulminante, 499 U.S. 306-10. The Court

distinguished “trial errors” from those constitutional

mistakes that cause a “structural defect in the

constitution of the trial mechanism.” /d. at 310.

27

These structural errors are not subject to harmless

error review; they are harmful per se and mandate

reversal of the verdict. See id.

Fulminante did not define what amounts to a

“structural error,” but it provided several examples:

the total deprivation of the right to counsel at trial,

see Gideon v. Wainwright, 372 U.S. 335 (1963), a

biased judge, see Tumey v. Ohio, 273 U.S. 510 (1927),

the unlawful exclusion of members of a defendant’s

race from a grand jury, see Vasquez v. Hillery, 474

U.S. 254 (1986), and the right to a public trial, see

Waller v. Georgia, 467 U.S. 39 (1984). Fulminante

explained that “[w]ithout these basic protections, a

criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence, and

no criminal punishment may be regarded as

fundamentally fair.” Fulminante, 499 U.S. at 310.

Here, Temple suggests that a “structural

error” occurred when the jury was permitted to -

consider whether Temple’s post-malpractice actions

amounted to willful, wanton or reckless conduct. “It

is simply impossible,” Temple argues, for a jury to

decide issues of liability and compensatory damages

and not be impacted by evidence relevant to punitive

damages. Cert. Pet. 13. This statement requires

several responses.

First, the suggestion that this case involved a

constitutional disaster akin to the examples provided

in Fulminante reflects a total lack of perspective on

what is fundamental in our constitutional system.

Due Process is not violated when admissible

evidence is admitted without objection. Even if some

28

theoretical Due Process violation occurred, the error

is a classic “trial error” and not equivalent in

constitutional magnitude to a deprivation of the

right to counsel, or being forced to try a case before a

biased judge, or a deprivation of a public trial.

Second, in any event, no State Farm violation

could conceivably have occurred during the

compensatory trial because none of the indicia of a

State Farm violation were even present. Evidence

about Temple’s post-malpractice conduct in the

instant case was properly admitted without objection

because it was relevant to Plaintiffs’ ability to carry

their burden or proof and to demonstrate spoliation.

Further, (1) the jury was never instructed on

punitive liability; (2) the jury was never asked on the

verdict slip whether Temple was should be punished

for its actions; (3) in fact, the jury was specifically

instructed that its job was only to determine

negligence and compensatory damages, that it was

not to punish anyone, and that it was entitled to

make an adverse inference from Temple’s —

concealment and alteration of crucial evidence; (4)

Plaintiffs’ counsel was entitled to discuss all properly

admitted evidence at closing argument; and (5)

Question No. 4 was asked without reference to the

question as a predicate for a later determination of

punitive damages.

Third, bifurcation of trials is a _ well-

established and flexible procedure that has never

been viewed as raising federal constitutional

questions in either state of federal courts. It should

be noted that while Temple cites eight state statutes

when discussing bifurcation, only the Mississippi

29

statute actually mandates the complete bifurcation

of compensatory and punitive issues. Cert. Pet. 13.

The Arkansas, Minnesota, North Carolina, New

Jersey, and North Dakota statutes require

bifurcation only if a party requests it. Jd. Temple

mischaracterizes the Virginia statute, which applies

only in asbestos cases and does not even provide for

bifurcation upon a party’s request. Jd. Moreover,

Temple ignores seven other statutes that specifically

provide for a procedure along the lines of what

_ occurred in the instant case: punitive liability to be

tried along with compensatory damages and for a

separate proceeding only to determine the amount of

punitive damages (so that net worth evidence will

not be heard by the jury in the compensatory phase).

See Tex. Civ. Prac. & Rem. § 41.009; Ala. Code § 6-

11-23; Ga. Code Ann. § 51-12-5.1; Kan. Stat. Ann. §

60-2702; Mo. Ann. Stat. § 510.263; Mont. Code Ann.

§ 27-1-221; Nev. Rev. Stat. § 42.005. Many statutes

addressing punitive damages do not provide for any

bifurcation whatsoever. See, e.g., Cal. Civ. § 3294;

Col. Rev. Stat. § 13-21-102; Idaho Code § 6-1604;

Iowa Code § 668A.1; Ind. Code. § 34-51-3-3; Ky. Rev.

Stat. Ann. § 411.186; La. Civ. Code Ann., art. 3546;

S.C. Code Ann. § 15-33-135. This diversity of

approaches forecloses Temple’s suggestion that the

federal constitution permits only one way of

handling punitive damages, as does the total

absence of jurisprudence discussing these various

approaches in a constitutional framework.

Fourth, the law review articles cited by

Temple underscore the lack of constitutional

dimension to the trial judge’s decisions in this case.

Cert. Pet. 14. These articles focus on the effect of

30

introducing net worth evidence or other evidence

solely relevant to the determination of punitive

damages when a jury must determine liability and

compensatory damages. No such evidence was

admitted here. Indeed, the article on which Temple

primarily relies — Steven S. Gensler, PREJUDICE,

CONFUSION, AND THE BIFURCATED CIVIL JURY TRIAL:

LESSONS FROM TENNESSEE, 67 Tenn. L. Rev. 653

(2000) — examines results in a state whose laws

specifically require that punitive liability be tried

with compensatory damages. See Hodges v. S.C.

Toof & Co., 833 S.W.2d 896 (Tenn. 1992). In any

event, that article makes a policy argument, not a

consti‘ utional argument.

Fifth, the cases cited by Temple on pages 14

and 15 of its certiorari petition further demonstrate

the lack of constitutional dimension to Temple’s

complaints. Not one of these cases even remotely

suggests that bifurcation represents a constitutional

mandate or anything other than a trial management

issue. They also involve issues unrelated to this

case. In Burke v. Deere & Co., 6 F.3d 497 (8th Cir.

1993), the appellate court set aside a compensatory

damages verdict because, inter alia, the jury had

heard evidence of the defendant’s net worth and that

evidence tainted the compensatory verdict. In

Hartford Underwriters Ins. Co. v. Williams, 936 So.

2d 888 (Miss. 2006), the appellate court ordered a

new trial because the trial court had failed to comply

with the Mississippi statute requiring bifurcation of

punitive damages and hence the jury heard evidence

about the defendant’s net worth. These cases both

involve the introduction of net worth damages in the

compensatory phase — something that did not

31

happen here. In Francis v. Coughlin, 755 F. Supp.

618 (S.D.N.Y.), a district court ordered a new trial on

damages because there was overwhelming evidence

of juror confusion. There was no such evidence here

and Temple’s argument on that subject has been

rejected multiple times under Pennsylvania law.

Sixth, the federal courts themselves view

whether and how to bifurcate a civil trial as matters

for trial court discretion. “Our approach to the issue

as a matter of federal law has been to favor

bifurcation of the amount of punitive damages as the

preferred method, but to leave the mode of trial

ultimately to the discretion of the district judge.”

Simpson v. Pittsburgh Corning Corp., 901 F.2d 277,

283 (2d Cir. 1990) (citation omitted). Federal courts

exercise this discretion with the understanding that

proper instructions will be heeded by the jury. See

Weidmer v. International Flavors & Fragrances, No.

C05-4138-MWB, 2007 WL 1959103 (N.D. Iowa. July

3, 2007) (citing Francis v. Franklin, 471 U.S. 307,

316 n.9 (1985); Opper v. United States, 348 U.S. 84,

95 (1954)); see also Kociemba v. G.D. Searle & Co.,

683 F. Supp. 1577 (D. Minn. 1988). It would be

strange for the federal courts to view bifurcation as a

matter for trial court discretion in federal cases, but

as a matter of constitutional moment for state cases.

Temple offers no support for any such suggestion.

Under all of these circumstances, there is no

merit to Temple’s notion that the ordering of

evidence and argument in this case represented not

just an error, but one of such magnitude that it

equates in constitutional significance to the

deprivation of the right to counsel and qualifies as a

32

“structural error” under Fulminante. This never-

before raised argument has been constructed solely

for the purpose of this certiorari petition. The

argument is substantively wrong, has not been even

been addressed in other cases, and does not warrant

this Court’s review.

IV. Temple’s argument regarding’ the

“presumption” of harmlessness is not

worthy of this Court’s review.

Temple’s final argument is that even if there

were no “structural error” under Fulminante, the

State Farm violation that occurred during trial was

improperly handled by the Pennsylvania courts

because those courts failed to place the burden on

Plaintiffs of demonstrating that no prejudice

occurred as a consequence of the error. Cert Pet. 16-

17.

This argument does not warrant certiorari for

several reasons. First, it is predicated on the notion

that a State Farm violation occurred during the trial,

a notion that fails for the reasons discussed above.

Second, Temple does not cite even a single

instance in which Chapman or Fulminante have

been applied or otherwise discussed in the context of

a typical civil action. They cite several cases in

which federal courts apply a version of the Chapman

standard when undertaking habeas corpus review of

state criminal convictions. Habeas review is

technically a civil proceeding, but it is directed to

determining whether a person should remain in

custody and has nothing to do with civil liability for

33

tortious conduct. See O’Neal v. McAninch, 513 U.S.

432, 440 (1995) (“Unlike the civil cases cited by the

States, the errors being considered here by a habeas

court occurred in a criminal proceeding, and

therefore, although habeas is a civil proceeding,

someone’s custody, rather than mere civil liability, is

at stake.”). It should also be noted that O’Neal.

addressed whether a judge should grant a habeas

corpus petition when the judicial mind is in “virtual

equipoise” as to the harmlessness of a trial error. In

the instant case, the Superior Court has not

struggled with its decision. It twice found a total

absence of prejudice and did not even publish its

opinions.

Temple cites one other case in which

Chapman was cited. See A.B. v. Y.Z., 878 A.2d 807

(N.J. 2005). There, a teacher was deprived of a Sixth

Amendment Confrontation Clause right to confront

her accuser in a tort suit brought by a student

against the teacher for sexual abuse. The student

had been permitted to testify via closed-circuit

television, but it was determined that the Sixth

Amendment required the student’s presence in the

courtroom. Although the burden to demonstrate

harmlessness now lay on the student, the New

Jersey Supreme Court still concluded that the error

was harmless because defense counsel subjected the

student to a complete cross-examination and because

of the judicial discretion to control the presentation

of evidence. See id. at 812. Needless to say, the

instant case does not involve a Sixth Amendment

violation or anything like it.

34

Third, as in A.B. v. Y.Z., and in contrast to

O’Neal, this case does not present close issues that

might turn on which party has the “burden of proof.”

The Superior Court twice has found that there was

no error in the admission of the evidence of Temple’s

post-malpractice conduct, no error in the argument

-based upon that evidence, and no resulting prejudice

given that (1) Temple had waived any objections to

purported error, (2) the jury was not instructed on

punitive liability or damages in the compensatory

phase, (3) the jury did not decide punitive liability or

damages in the compensatory phase, (4) the jury was

specifically instructed that they were not there to

punish anyone, and (5) the compensatory verdict was

for millions less than the evidence would have

permitted. App. 2a, Illa. Under these

circumstances, the outcome would be the same even

if Plaintiffs had the burden of showing

harmlessness.

CONCLUSION

Temple proposes that this Court review the

unpublished opinions of an intermediate state

appellate court regarding a manufactured issue that

is not the subject of conflicting judicial opinions

because no cases have even discussed it. The

petition does not present an issue worthy of this

Court’s review. The petition should be denied.

35

Respectfully submitted,

SHANIN SPECTER

Counsel of Record

ANDREW S. YOUMAN

CHARLES L. BECKER

KLINE & SPECTER,

A PROFESSIONAL CORPORATION

1525 Locust Street, 19th Floor

Philadelphia, PA 19102

(215) 771-1000