# Reply Brief — Missouri Pacific Railroad v. Anglim

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1502%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 1041

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1502%3A3. Public record. Not legal advice.