Reply Brief — Missouri Pacific Railroad v. Anglim

No. 92-690

FILED

ROV 25 1992

OFFICE GF THE CLERK

Supreme Court of the Anited States

Ocroser Term, 1992

Missour! PaAciFiC RAILROAD COMPANY,

Petitioner,

LAWRENCE J. ANGLIM,

Respondent.

On Petition for a Writ of Certiorari to

The Supreme Court of Missouri

PETITIONER’S REPLY TO

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

St. Louis, Missouri 63101

(314) 231-7676

Counsel for Petitioner

*Counsel of Record

net ERE RENTS AN LRN TERRE NERS LeoNeNNRNNANNN Amer

St. Louis Law Printing,Inc. 13307ManchesterRd. St. Louis, MO 63131 314-231-4477

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..........cccssccossscseees ssakabnnnesennntion i

TABLE OF AUTHORITIES ...............ccccsssssssesessseeeeees ii

PETITIONER’S REPLY TO BRIEF IN OPPOSI-

initia

TABLE OF AUTHORITIES

Page(s)

Cases:

Aldridge v. Baltimore & Ohio R. Co., 814 F.2d 157 (4th

Ce, TGIEE). ncccrceessossecsescosipiniietedesnensaiieiienaieiieenadictuaiiaiiaiee 5

Bair v. St. Louis San Francisco Ry. Co., 647 S.W.2d 507

(Mo. banc), cert. denied 464 U.S. 830 (1983) ...... 2

Ballantine v. Central Railroad of New Jersey, 460 F.2d

540 (3rd Cir.) cert. denied, 409 US. 879 (1972)....... 2,3,4,5

Black v. Cowan Const. Co., 738 S.W.2d 617 (Mo. App.

BDG7) <a cconssssnsseanisnanonnissdsibiabsealiaptbpiainaganbiaeatiniteibanttives 1

DiSabatino v. National Railroad Passenger Corp., 724

Fe SOG Ck Ga TI encsincniacincninipliniecsinnss 2,3,4,5

Doca v. Marina Mercanti Nicaraguense, S.A., 634 F.2d

30 (2d Cir. 1980) cert. denied 451 U.S. 971

CIDE) .xccncresssissnececsnsunsennsieiceiiiieniaiieinadniiaimeadiiabiaass 6

Duncan v. St. Louis San Francisco RR. Co., 480 F.2d 79

(8th Cir.), cert. denied, 414 U.S. 859 (1972) ........ 2

Haddigan v. Harkins, 441 F.2d 844.(3d Cir. 1970) ...... 5

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523

CRIED) sninscsssininniestinsnsisisiesaniaabienidbiaanieamiaiaiiintediiiatan 5

Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123

(EDTA .xccncnscsntsineiisiitiiiniisbigetidienaliiciiadaianiiainsiibaaiiiian 3

Ore v. Grr, 4D TB TB CEST OD <cxitttnasancitinitininctiathitien 3

Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453

(308 Che. EDGR) ccccsssiscanapicnisntnenipibiiabiaganaiaiein 5

— 1li—

Raley v. Ohio, 360 U.S. 423 (1959) ......cccccccccssccccsesseees

Russell v. City of Wildwood, 428 F.2d 1176 (3rd Cir.

Sampson v. Missouri Pacific R. Co., 560 §.W.2d 573

ee ITED aiichnidcsnithsdnscntncccendehdnniebainiienibaaiiant

St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S.

IIT Wiha vesscciissvitisiheiativeidateinchieeaaneiehinenasinedidoadaslias

Statutes:

Federal Employers Liability Act, 45 U.S.C. §51 et

Nice aidititlnrnitnsiesrivacniebicsccpnetiindinsnicitieiceesanieniipehatetnions

Other Authorities:

C. Wright, Law of Federal Courts, $107, p. 745 (4th ed.

No. 92-690

IN THE

Supreme Court of the United States

Octoser TERM, 1992

MIssourRI PACIFIC RAILROAD COMPANY,

Petitioner,

VS.

LAWRENCE J. ANGLIM,

Respondent.

On Petition for a Writ of Certiorari to

The Supreme Court of Missouri

PETITIONER’S REPLY TO

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondent’s principal argument in opposition to the Petition

is that petitioner supposedly did not timely raise the question

presented in the trial court. Regardless of whether the claim was

timely as a matter of state law,' the fact remains that the Supreme

‘In order to preserve error as to the sufficiency of the evidence, Missouri

courts require that the issue be raised either in a motion for directed verdict

or in post-trial motions for judgment notwithstanding the verdict and new

trial. E.g.,Blackv. Cowan Const. Co., 738 S.W.2d 617, 621 (Mo. App. 1987).

The issue was raised in the trial court in petitioner’s post-trial motions, which

were denied. See Petition, p. 6.

=, oon

Court of Missouri actually considered and decided the question

of whether a plaintiff in an action under the Federal Employers

Liability Act (“FELA”), 45 U.S.C. §51 et seq., must offer any

evidence of the present value of his lost future wages in order to

meet his burden of making a submissible case on the issue. In

ruling that a FELA plaintiff need not offer such proof, the

Missouri Supreme Court held:

Of more substance is defendant’s argument that, since a

present value instruction is required in FELA cases, evi-

dence of the manner of computing present value is an

essential element of an FELA plaintiff’s burden of proof.

Defendant relies upon two decisions of the United States

Court of Appeals, 3rd Circuit, which so hold. DiSabatino

v. National Railroad Passenger Corp., 724 F.2d 394, 396

(3rd Cir. 1984); Ballantine v. Central Railroad of New

Jersey, 460 F.2d 540, 544 (3rd Cir.) cert. denied, 409 U.S.

879 (1972). Defendant acknowledges the 8th Circuit has

reached a contrary conclusion. Duncan v. St. Louis San

FranciscoR R. Co., 480 F.2d 79, 87 (8th Cir.), cert. denied,

414 U.S. 859 (1972).

While no Missouri case has specifically addressed the

point, Missouri appears to follow the rule laid down by the

8th Circuit [citing Bair v. St. Louis San Francisco Ry. Co.,

647 S.W.2d 507 (Mo. banc), cert. denied 464 U.S. 830

(1983)].

** ¢ \

Therefore, we do not run afoul of the federal law by

following Bair in holding that either plaintiff or defendant

may offer present value evidence, but whether or not such

evidence is offered, the subject is open to jury instruction if

requested and tojury argument.... The sum included with-

in the general verdict as compensation for future loss of

wages is a matter forever relegated to the bosom of the jury.

ies

In the absence of any contrary indication, we can assume

each juror in his or her respective fashion complied with the

instruction and determined the present value of future wage

loss.

App. A at A-17-18.

When a state court actually decides a question of federal law,

the objection that it was not timely raised in the courts below is

without force. Orr v. Orr, 440 U.S. 268, 274-275 (1979). This

is merely an application of the “elementary rule that it is

irrelevant to inquire . .. when a Federal question was raised in a

court below when it appears that such question was actually

considered and decided.” Manhattan Life Ins. Co. v. Cohen, 234

U.S. 123, 134(1914). As the Court has consistently held, “There

can be no question as to the proper presentation of a federal claim

when the highest state court passes on it.” Raley v. Ohio, 360

U.S. 423, 436 (1959). See also C. Wright, Law of Federal

Courts, §107, p. 745 (4th ed. 1983).

Respondent also questions whether a conflict exists between

the decisions of the Third Circuit in Ballantine and DiSabatino

and the decision of the Supreme Court of Missouri. Even putting

aside the conclusion of the Missouri Supreme Court below that

such a conflict indeed exists, see App. A. at A-17, respondent’s

efforts to distinguish the Third Circuit decisions are unavailing.

Respondent claims that Ballantine focused on an inadequate

jury instruction which failed to give the jury guidance as to the

reduction of the plaintiff’s future lost wages to present value.

Respondent has clearly misread the opinion and ignored its

relevant parts. First, the jury instruction given by the Ballantine

trial court was more detailed in its explanation of the concept of

present value than the one given by the trial court in this case.”

2 The jury instruction given by the trial court on present value is quoted at

p. 4 of the Petition. The instruction given by the Ballantine court is quoted

in 460 F.2d at 542 n. 5.

FS ee ee ee ee Se Pee ee eerie Sa eS Ee

i Se

Second, the instruction given by the Ballantine trial court spe-

“#fically stated that the process described is that “which is

-nvolved when you come to an award and award lost earnings in

the future.” 460 F.2d at 542 n. 5.

Respondent’s suggestion that Ballantine turned on a jury

instructional issue simply is not borne out by the opinion. The

critical paragraph in the opinion is found at page 544 where the

court stated:

The record in this case . . . contains evidence of lost future

earnings. The parties stipulated the retirement age from the

railroad. Evidence was offered to show an annual diminu-

tion of earnings by $6,250.00. Plaintiff closed to the jury on

this issue by multiplying the number of years of plaintiff’s

work expectancy with Central by the annual loss of earn-

ings figure, arriving at a gross figure of $143,750. No other

evidence was introduced on the method of reducing lost

prospective earnings to present value. Under these circum-

stances, the award of damages cannot stand. We hold that —

once evidence is presented and recovery is sought for future

lost earnings, the jury is entitled to receive evidence and

appropriate mathematical guidance on the method of re-

ducing lost future earnings to present worth, if they are to

act rationally and ‘not upon mere conjecture and guess.’

460 F.2d at 544 (emphasis added).

This description of the record in Ballantine is identical to that

in the Missouri trial court below. Obviously, the Third Circuit

and the Missouri Supreme Court differ over the significance of

the plaintiff’s failure to offer evidence of the measure of his

damages for lost future wages.

DiSabatino stands for exactly the same proposition as

Ballantine, i.e., that plaintiff has the burden of offering evidence

of the present value of his lost future wages. The only wrinkle

— van

in DiSabatino that was not present in Ballantine was that at the

time it was tried the Third Circuit’s decision in Pfeifer v. Jones

& Laughlin Steel Corp., 678 F.2d 453 (3rd Cir. 1982) was then

before this Court on a petition for a writ of certiorari. After the

jury verdict in DiSabatino, this Court reversed the Pfeifer

decision. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523

(1983). The plaintiff chose not to offer evidence of the present

value of his lost future wages and successfully opposed a jury

instruction on the issue. The Third Circuit in DiSabatino

reaffirmed the proposition that “the burden of producing evi-

dence [of the present value of the plaintiff’s lost future wages]

rested with the plaintiff.” DiSabatino, 724 F.2d at 395, citing

Ballantine, Russell v. City of Wildwood, 428 F.2d 1176, 1180

(3rd Cir. 1970) and Haddigan v. Harkins, 441 F.2d 844, 853 (3d

Cir. 1970).

Respondent confuses the question of whether an instruction

on reducing the plaintiff’s future lost wages to present value

should be given (which is not raised in the petition) with the

question of whether the plaintiff has the burden of proving the

present value of his lost future wages (the issue raised in the

petition). Plaintiff argues that in the absence of any evidence by

either party, it is proper to submit the issue on a general

instruction of the type refused by the trial court in St. Louis

Southwestern Ry. Co. v. Dickerson, 470 U.S. 409 (1985), relying

on the concurring opinion of Judge Phillips in Aldridge v.

Baltimore & Ohio R. Co.,814 F.2d 157 (4th Cir. 1987). Whether

Judge Phillips’ concurring opinion or whether Judge Chapman’s

dissenting opinion in the same case was correct begs the very

question petitioner asks this Court to resolve.

Respondent criticizes the sample present value calculation

contained in the Petition on the grounds it has no support in the

record. Petition, pp. 12 n. 1,22. 4. Of course, neither party

offered any evidence of how to calculate present value. The

calculation of present value in footnotes 1 and 4 of the Petition

were examples of mathematical computations of present value

auton

based upon cases such as Doca v. Marina Mercanti Nicaraguense,

S.A., 634 F.2d 30 (2d Cir. 1980) cert. denied 451 U.S. 971 (1981)

which suggested an historical “real interest rate” of 2%.

Respondent further criticizes the “real interest rate” used in

the example in the Petition because it “conveniently leave({s] out

the effects of inflation and wage increases.” Brief in Opp. at p.

15. As noted in Doca, the “real interest rate” accounts for

precisely these factors. 634 F.2d at 36-40. If counsel for the

plaintiff in this action, who have many years of experience in

representing railroad workers in FELA cases, do not understand

the concept of real interest rates, than how can they argue that a

jury of laymen would intuitively figure it out for themselves in

absence of any evidence?

Respondent also cautions against requiring the admission of

evidence of present value on the grounds that it might cause the

trial to degenerate into a “graduate economics seminar.” Brief

in Opp. at p. 15. This fear is overstated. Every personal injury

suit under the FELA already requires the plaintiff to produce

medical evidence of the plaintiff's injury and its causation by the

accident in question. Yet, no one has ever expressed a fear that

personal injury trials may degenerate into “graduate medical

seminars” even though doctors routinely are called to testify

about injuries to various parts of the plaintiff's body.

The sample cross-examination proffered by the respondent,

Brief in Opp. at pp. 15-16, is hardly indicative of a major trial

management problem. Indeed, the jury may well follow the

testimony of economists about discounting future wages to

present value with the same degree of ease or difficulty as they

follow a doctor’s testimony about the details of CAT scans or

magnetic resonance imaging tests of lumbar discs at the L5S-S1

level, which are a routine feature of such trials. The courts have

had no difficulty in dealing with present value evidence when it

is offered. See, e.g. Sampson v. Missouri Pacific R. Co., 560

S.W.2d 573, 587-589 (Mo. banc 1978).

|

|

a

Finally, respondent claims prejudice from a so-called “appeal

by ambush” because it might have chosen to present additional

evidence or try to reach certain stipulations had the argument

been raised earlier. This is self-serving nonsense. The record

establishes that respondent objected to the giving of the present

value jury instruction because petitioner offered no such evi-

dence. Tr. [V-459; Petition, p. 4. Under Missouri precedent as

it then existed and as it stands now, an FELA plaintiff has no

responsibility to present any evidence on the issue of the present

value of his claimed lost future wages. ‘The question of whether

this is a correct legal position under the FELA is the issue raised

by the Petition.

CONCLUSION

Petitioner claims that the plaintiff’s burden of proof under the

FELA is to offer evidence of his damages, including the present

value of lost future wages. Respondent claims that he has no

such burden and that the jurors may calculate such damages “in

his or her respective fashion” with no evidentiary basis. The

courts below, as detailed in the Petition, differ on the question.

The issue is a recurrent one which should be resolved by this

Court. Petitioner respectfully requests the Court to grant the

Petition for Writ of Certiorari.

Respectfully submitted,

James W. Erwin*

Dan H. Ball

THOMPSON & MITCHELL

One Mercantile Center, Suite 3400

St. Louis, Missouri 63101

(314) 231-7676

Counsel for Petitioner

Missouri Pacific Railroad Company

* Counsel of Record

November 1992