Supplemental Brief — Owens-Illinois, Inc. v. Roby

e Court, U.S.

_RILED

No. 92-423 =

THE CLERK

IN THE

Siupirene Court of the United States

OCTOBER TERM, 1992

OWENS-ILLINOIS, INC..

- Petitioner

FREDERIC EF. ROBY and FRANCES A. SOLLY,

_ Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITIONER’S SUPPLEMENTAL BRIEF

Of Counsel: JAMES D. MILLER *

PHILIP MCWEENY KING & SPALDING

DAVID L. GRAY Suite 1200

OWENS-ILLINOIS, INC. 1730 Pennsylvania Avenue, N.W.

One SeaGate Washington, D.C. 20006 -

Toledo, Ohio 48666 (202) 737-0500

(419) 247-1004 ROBERT A. BUNDA

THERESA R. DEWITT

RICHARD A. PAPURT

BUNDA, STUTZ, & DEWITT

One SeaGate, Suite 650

Toledo, Ohio 43604

(419) 247-2777

* Counsel of Record

Attorneys for Petitioner

WILSON - EPEs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

REST AVAILABLE COPY ®

QUESTIONS PRESENTED

1. Do repetitive awards of punitive damages for the

same course of conduct violate the Due Process Clause

under the principles announced in Pacific Mutual Life

Insurance Co. v. Haslip, 111 S. Ct. 1032 (1991)?

2. Is appellate review of a jury’s award of punitive

damages adequate under due process where neither the

factors identified by the Court in Haslip, nor any similar

factors, are taken into account?

3. Does Fed. R. Civ. P. 16 permit the admission of

prejudicial evidence in direct contravention of a pretrial

order?

il

RULE 29.1 STATEMENT

The statement required by Rule 29.1 was included in

Petitioner’s petition for certiorari.

IN THE

Supreuw Court of the United States

OCTOBER TERM, 1992

No. 92-423

OWENS-ILLINOIS, INC.,

ig Petitioner

FREDERIC E. RoBY and FRANCES A. SOLLY,

: Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITIONER’S SUPPLEMENTAL BRIEF

Pursuant to Supreme Court Rule 15.7, Owens-Illinois,

Inc. (“Owens-Illinois”) files this Supplemental Brief to

advise the Court of recent developments in the case law

cited in support of Owens-Illinois’ Petition for a Writ of

Certiorari to the United States Court of Appeals for the

Sixth Circuit.

In its Reply Brief in Support of the Petition for Writ

of Certiorari Owens-Illinois discussed a case recently de-

cided by the Third Circuit, Dunn v. HOVIC, 1992 U.S.

App. Lexis 22749 (3d Cir. Sept. 18, 1992). The Third

Circuit has vacated the panel’s decision in Dunn, and

granted defendant’s Petition for Rehearing and Sugges-

tion for Rehearing En Banc. Dunn v. HOVIC, 1992 U.S.

App. LEXIS 25457 (3d Cir. Oct. 8, 1992).

The Third Circuit’s decision te rehear the Dunn case

en banc is evidence of the continued activity and concern

*)

a

in the lower courts venerated by constitutional challenges

to claims for punitive damages. The asbestos personal-

injury litigation is the cause for much of this activity:

indeed, Judge Weis fiied a forceful dissenting opinion in

Dunn based in jarge part on the number of asbestos per-

sonal injury claims and bankruptcy filings by asbestos

defendants. Judge Weis advocated striking punitive dam-

ages claims from the asbestos persona! injury litigation,

arguing that “punitive damages should not be recovered

because their purposes are not being served and their

benefits ave outweighed by their cost to society.” Dunn v.

HOVIC, 1992 U.S. App. LEXIS 22749 at *92 (3d Cir.

Sept. 1&8, 1992) (Weis, J., dissenting), vacated and peti-

tion. for rhrg en bane granted, 1992 U.S. App. LEXIs

25457 (3d Cir. Oct. 8, 1992).

The Third Circuit’s decision to re-examine en bane the

due piocess concerns impliested by claims for punitive

damages emphasizes the importance of this issue and the

need for additional guidance from this Court.

Respectfully submitted,

Of Counsel: JAMES D. MILLER *

PHILIP MCWEENY KING & SPALDING

DAVID L. GRAY Suite 1200

OWENS-ILLINOIS, INC. 1730 Pennsylvania Avenue, N.W.

One SeaGate Washington, D.C. 20006

Toledo, Ohio 43666 (202) 737-0500

(419) 247-1004 tOBERT A. BUNDA

THERESA R. DEWITT

RICHARD A. PAPURT

BUNDA, STUTZ, & DEWITT

One SeaGate, Suite 650

Taledo, Ohio 43604

(419) 247-2777

* Counsel of Record

Attorneys for Petitioner

October 28, 1992