Petition for Writ of Certiorari — Benasa Realty Co. v. Mooney

FIL ED

NOV 27 92

NO. 92- OFFICE OF Tell SLARK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

BENASA REALTY COMPANY, t/a Wild Acres t/a

Wild Acres Country Club t/a Wild Acres,

Inc.; BENASA HOLDINGS, INC.; WILD ACRES,

INC.; BENASA REALTY COMPANY, c/o

First Eastern Bank, N.A.; BENASA

INVESTMENTS, INC., c/o Corporation

Guarantee and Trust Company; WILD ACRES

COUNTRY CLUB, INC.; and WILD ACRES LAKES

PROPERTY & HOMEOWNERS ASSOC.

Petitioners

Vv.

DENNIS MOONEY, MLA MANAGEMENT

ASSOCIATES, INC. and MOUNTAIN

LEISURE ASSOCIATES,

Respondents

On Petition for Writ of Certiorari

to-the United States Court of Appeals for

the Third Circuit

PETITION FOR WRIT

OF CERTIORARI

CHARLES W. CRAVEN

1845 Walnut Street

Philadelphia, PA

(215) 575-2626

Attorney for

Petitioners

QUESTIONS PRESENTED FOR REVIEW

May a federal court of appeals evade

the mandates of the Seventh Amendment and

Erie Railroad v. Tompkins, 304 U.S. 64

(1938), simply because its decision is

rendered in an opinion marked "NOT FOR

PUBLICATION"?

Did the Court of Appeals exceed its

appellate jurisdiction by rendering a

decision which: (1) redetermines the

case in a manner inconsistent with the

jury’s verdict and in contravention of

the Seventh Amendment and Atlantic & Gulf

Stevedores, Inc. v. Ellerman Lines, Ltd.,

369 U.S. 355 (1962); (2) negates the

jury’s verdict, that plaintiff had

incurred and assumed the risk of his

injury by his dive, and mandates a new

trial in which the defendants will bear

the risk of full liability consequent to

plaintiff’s dive on the "injury on rescue

not on dive" theory advocated by

plaintiff but rejected by the jury; (3)

fails to grant to the District Court the

deference required for its considerable

discretion in formulating jury

interrogatories; (4) reverses a valid

judgment on the basis of a ruling that

the District Court actually did not make;

(5) requires a new trial based upon

dispositive legal principles formulated

by the Court of Appeals contrary to those

established by controlling law; and (6)

invented testimony not provided by the

plaintiff’s expert on a crucial element

of plaintiff’s claims?

May a federal appellate court ina

diversity case create its own version of

the evidence, the facts, and the law, in

contravention of the record, the jury’s

verdict, and established precedents, to

grant its appellant a new trial?

When controlling state law ina

diversity case places the burden of

establishing apportionment or separate

injuries on the party claiming

apportionment or separate injuries, may a

federal appellate court shift that burden

to those who make no such claim?

When a jury has expressly found that

the plaintiff assumed the risk of his

injury, and that finding is supported by

the evidence and untainted by reversible

error, may a federal appellate court

grant a new trial in which the risk of

plaintiff’s injury is shifted from the

plaintiff to the defendants?

When the jury’s verdict necessarily

embraces a finding that plaintiff

sustained his injury during his dive when

his head struck the bottom of the pool

rather than during the subsequent rescue,

may a federal appellate court order a new

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trial to determine whether the injury

occurred not at impact in the dive but

during the subsequent rescue?

When the trial record plainly shows

that a party was permitted to present an

issue for the jury’s resolution, may a

federal appellate court grant that party

a new trial on the ground that the party

had not been permitted to present the

issue?

me me mc ne me mm ee ee me we we i ee ee i a re ee ee ee ee ees ee eee ee ee ee

LIST OF PARTIES

The caption of the case contains the

names of all parties currently involved

in this case. KDI Corporation and KDI

Sylvan Pools, Inc. are not listed,

because they have been dismissed.

Petitioners, who were defendants in

the District Court and appellees in the

Court of Appeals have been collectively

referred to as "the Benasa defendants" or

"Benasa" in the lower courts and in this

petition. Respondent Dennis Mooney was

the plaintiff in the District Court and

the appellant in the Court of Appeals,

and this petition continues the

references to him as "plaintiff" or

"Mooney". Respondents MLA Management

Associates, Inc. and Mountain Leisure

Associates were defendants in the

District Court and appellees/cross-

appellants in the Court of Appeals. This

petition continues the references to them

collectively as MLA. The Corporate

parties have no unlisted parent

companies, subsidiaries or affiliates.

Se ee

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REFERENCE TO REPORTS OF DECISIONS

BELOW

JURISDICTIONAL GROUNDS

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE se

Jurisdiction of the Lower

Courts .

Statement of Facts

ARGUMENT

CONCLUSION

a eee ee

PAGE

TABLE OF AUTHORITIES

PAGE

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3 Be UemseGe BAeek 6s « 4 * 2 e+ ee heh 14

ee UG. SA00SIED 6 ae Kt ews 6S

oe WameGese DEOee «s 4 6 et es ee eR he Aa

28 U.S.C. §1652. . + = S « wae es 36

i 9 a ae, | ec a a 40

oo es Fa |. Ae ae ee er ee ee 36

Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd., 369 U.S. 355

SINGS a a ead. ToS tere, i gs, a sw

Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Lid aon U.S. 355, 82

S.Ct. 780 (1962) ba ae ee: eas call

Borman v. Raymark Industries, Inc.,

960 F.2d 327, 331 (3rd Cir. 1992)... 36

Bryant v. Girard Bank,

358 Pa. Super. 335, 517 A.2d 968, 975

(1986) (under §433(B)(2) ....... 37

DeEugenio v. Allis-Chalmers Mfg. Co.,

— 210 F.2d 409, 414 (3rd Cir. 1954) .. 24

Eric R. Co. v. Tompkins,

304 U.S. 64, 75, 58 S.Ct. 817, 820-1

cir er re

Erie Railroad v. Tompkins,

[6 U8, Wh TANS. eu xs & 4. @-% i. 2

Gibson v. Lochheed Aircraft Service,

256 U.8.- 356, 367 129080) 6k os s S

Habecker v. Clark Equipment Co.,

942 F.2d 210, 214 (3rd Cir. 1991) .. 40

Healey v. Catalyst Recovery of Penna.,

Inc., 616 F.2d 641, 648 (3rd Cir.

ho | a a a a a ee a ee |

Huddell v. Levin,

537 F.2d 726 (3rd Cir. 1976) .. 35, 40

In re Merritt Logan, Inc.,

901 F.2d 349, 367 (3rd Cir. 1990) ° 23

Martin II,

515 Pa. at 382, 528 A.2d at 949 ... 36

Martin v. Owens-Corning Fiberglas Corp.,

515 Pa. 377, 528 A.2d 947 (1987) .. 36

Martin, 528 A.2d at 949 ..... 36, 39

McNally v. Nationwide Ins. Co.,

815 F.2d 254, 266 (3rd Cir. 1987) 23, 24

Mesarosh v. United States,

ome Gels By BS CEPSOF «6 « te te te te 12

Offensend v. Atlantic Refining Co.,

322 Pa. 399, 185 A. 745 (1936) ... 39

Pavorsky, 148 A.2d at 103 ...... 39

Restatement (Second) of Torts

SSJamials © © © 8 6 & © ee eel et lll hl SE

Roe v. Deere and Co., 855 F.2d 151, 153

ee ae. ow Pae | |; er ee |

Seventh Amendment ....... 1, 12, 18

United States v. Munsingwear, Inc.,

340 U.S. 36, 40 (1950) :. ss 6 &* « 12

Wade v. S.J. Groves,

283 Pa. Super. 464, 424 A.2d 902, 907 n.2

DES Se EN eg a a eg ee ee

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REFERENCE TO REPORTS OF DECISIONS BELOW

The opinions of the Court of Appeals

and of the District Court have not been

published, but may be found in the

separately bound appendix to this

petition, starting at pages 1 and 42,

respectively.

JURISDICTIONAL GROUNDS

The judgment of the Court of Appeals

is dated August 31, 1992 (86-88).' The

Court of Appeals denied petitioners’

timely petition for rehearing by its

order dated September 29, 1992 (89-91).

This is a timely petition for writ

of certiorari, filed within 30 days of

the order denying rehearing, Rule 20 of

the Rule of the United States Supreme

Court. This Honorable Court may review

the judgment of the Court of Appeals by

iThe numerical references are to the

pages of the separately bound appendix to

this petition.

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writ of certiorari pursuant to 28 U.S.C.

§1254(1). This Honorable Court has broad

supervisory powers over the judgments of

lower federal courts, United States v.

Munsinqwear, Inc., 340 U.S. 36, 40

(1950), may reverse a Court of Appeals

and reinstate a District Court judgment,

Gibson v. Lochheed Aircraft Service, 350

U.S. 356, 367 (1956), and, in the

exercise of such jurisdiction, must see

to it that the waters of justice are not

polluted, Mesarosh v. United States, 352

U.S. 1, 13 (1959).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Seventh Amendment to the United

States Constitution provides:

"In suits at

common law, where the

value in controversy

shall exceed twenty

dollars, the right of

trial by jury shall

be preserved, and no

fact tried by a jury,

shall be otherwise

reexamined in any

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Court of the United

States, than

according to the

rules of the common

law."

Section 1652 of the United States

Judicial Code, 28 U.S.c. §1652, provides:

"The laws of the

several states,

except where the

Constitution or

treaties of the

United States or Acts

of Congress otherwise

require or provide,

shall be regarded as

rules of decision in

Civil actions in the

Courts of the United

States, in cases

where they apply."

STATEMENT OF THE CASE

A. Jurisdiction of the Lower

Courts

The District Court had jurisdiction

pursuant to 28 U.S.C. §1332(a) by virtue

"The “laws of the several States"

include the judicial decisions of the

states’ highest courts, Erie Railroad v.

Tompkins, 304 U.S. 64 (1938); Cohen v.

Beneficial Industrial Loan Corp., 337 U.S.

541, 555 (1949).

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of the amount in controversy in excess of

the required amount and the diversity of

citizenship between plaintiff and the

defendants. The Court of Appeals, had

jurisdiction over the appeals from the

District Court’s final order and judgment

by virtue of 28 U.S.C. §1291.

B. Statement of Facts

Concluding a lengthy and expensive

trial,’ at which plaintiff Dennis Yooney

contended that he had made only a shallow

"racing" dive into the defendants’

swimming pool and that his irreversible

quadriplegia was either caused by the

defendants’ negligence in maintaining or

marking the pool’s water depth, or was

caused when he was rescued, and the

‘The trial began on Monday, November

19, 1990, and ended on Wednesday, November

28, 1990, generated a 1,030-page

transcript, and cost plaintiff $122,100

according to his attorneys’ post-trial

affidavits (64); defense expenses raise

this total much higher.

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defendants countered that plaintiff’s

quadriplegia happened when his head hit

the bottom of the pool and that plaintiff

had caused and had assumed the risk of

his injury by making a running, nearly

vertical dive contrary to his training

and experience, the jury returned its

verdict by answering the first two

special interrogatories, in which they

found that the defendants had proven that

the act of diving into the pool involved

a risk knowingly assumed by plaintiff.

The District Court entered judgment for

the defendants and rejected plaintiff’s

motion for a new trial.

Plaintiff then appealed, contending

that the District Court erred by

admitting deposition excerpts to be read

by MLA’s attorney, by allegedly

foreclosing his “injury on rescue" theory

from the jury’s consideration, and by

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placing on him, rather than the

defendants, the burden of proving his

claim that he sustained two injuries, an

incomplete injury at impact and a

complete quadriplegic injury at rescue.

In a “NOT FOR PUBLICATION" opinion filed

on August 31, 1992, a Panel of the Court

of Apveals rejected plaintiff’s claim

that he was entitled to a new trial "on

liability for the dive" because of the

deposition excerpts read at trial by

counsel for MLA (31), but agreed with

plaintiff’s arguments "that there was

adequate evidence in the record to

support a discrete negligent rescue

Claim, and conclude[{d} that the failure

to submit it to the jury was prejudicial

error" (5). Believing that the negligent

rescue claim had been foreclosed from the

jury’s consideration and that "The jury

should, however, have been able to

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consider separately the question whether

there was a negligent rescue, the risk of

which the plaintiff did not assume", (25)

the Panel decided to remand the case "for

a new trial on the negligent rescue claim

against the Benasa and MLA defendants"

(40).

In reaching the decision in

question, the Panel opinion proceeded on

the misbeliefs that the District Court

precluded plaintiff from presenting his

"exacerbation by rescue" claim to the

jury, and that plaintiff had introduced

evidence factually sufficient for that

claim. The Panel opinion also

misapprehended or overlooked these

crucial points of law and fact: 1) the

threshold issue common to plaintiff’s

"negligent rescue" claim rejected by the

jury and to the “assumption of the risk"

defense found by the jury was whether or

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ne ee

not plaintiff’s permanent quadriplegia

resulted when plaintiff executed a dive

that caused that injury at impact with

the pool bottom; 2) the District Court

did not preclude plaintiff from pursuing

his negligent rescue claim to the jury,

and plaintiff did present that claim to

the jury; 3) the District Court properly

exercised its discretion in formulating

the jury’s special interrogatories; 4)

the jury’s verdict rejects plaintiff’s

negligent rescue claim as a matter of

established fact; 5) the Panel opinion

reviews and effectively negates the

jury’s verdict in a manner inconsistent

with the Seventh Amendment and with its

duties as a federal appellate court; 6)

as the proponent of apportionment or

aggravation, plaintiff had the burden of

proving to the jury’s satisfaction his

contention that his permanent

-~18-

quadriplegia resulted not from the impact

of his body with the bottom of the pool,

but from the manner in which he was

rescued; 7) the testimony of plaintiff’s

expert Dr. Kaplan failed to provide a

factual basis for the jury to find that

plaintiff suffered two injuries, an

incomplete spinal injury at impact with

the pool bottom and a complete spinal

injury during his rescue, or to find that

the alleged incomplete injury was not as

totally disabling as the complete injury;

and 8) the Panel’s mandate

unconstitutionally upsets an unassailable

jury verdict and requires a new trial

controlled by principles contrary to

established law.

Noting that plaintiff “argues that

the district court committed error by

refusing to allow Mooney to argue his

case as involving separate theories of

-19-

liability" (5), the Panel opinion holds

"that there was adequate evidence in the

record to support a discrete negligent

rescue claim, and conclude[s] that the

failure to submit it to the jury was

prejudicial error" (Id.). The District

Court, however, did not preclude

plaintiff from submitting his negligent

rescue claim to the jury. In

mischaracterizing the case as one in

which the District Court dismissed and

foreclosed jury consideration of

plaintiff’s "spine board" claim (14), the

Panel opinion completely ignores the

record, which shows that, although the

defendants posited that "it may very well

be that it is irrelevant to even argue

about it at this point to the jury” (223)

and that "the issue of the spine board

and lack of use of the spine board should

not be argued to this jury" (226), the

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District Court explicitly ruled that "I

will allow that to remain in the case"

(227). Contrary to mistaken belief of

the Panel opinion that the District Court

sustained defendants’ arguments to

dismiss (14), the District Court actually

rejected defendants’ arguments to dismiss

plaintiff’s rescue claim (221-228).

While the Appendix submitted to the Court

of Appeals Panel did not contain

plaintiff’s closing argument to the jury,

a review of that transcript reveals that

plaintiff’s attorney did in fact argue

the negligent rescue claim to the jury

(215-220).

Although the District Court

accurately determined that plaintiff’s

evidence was inadequate "on separating

the injury" and "on which the jury could

differentiate the damages" (221), the

District Court nevertheless drafted

-2 1l-

special jury interrogatories "to put

[plaintiff’s rescue claim) to the jury in

a reasonable and responsible fashion"

(Id.), an approach that did in fact

"include all of the acts in the concept

of negligence, even the concept of

comparative negligence and assumption of

the risk will work properly, in my

judgment, since the guard’s conduct would

not have happened at all without the

Plaintiff’s initial conduct" (222).

The District Court’s approach

allowed the parties to present all of

their claims and defenses (except for the

emergency and Good Samaritan defenses),

and properly focused the jury’s attention

on the threshold factual issues: the

type of dive that plaintiff executed, the

injury that that dive inflicted, and

plaintiff’s appreciation of the risk of

that injury. Plaintiff contended and

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argued to the jury that he had executed a

shallow racing dive and was rendered a

complete quadriplegic by the defendant’s

rescue without the spine board. The

defendants proved, however, that

plaintiff had executed a nearly vertical

dive that produced an impact at the

bottom of the pool which shattered

plaintiff’s cervical spine and caused

immediate quadriplegia, an injury which

plaintiff voluntarily assumed. The jury

was free to accept or reject the parties’

respective contentions under the District

Court’s approach.

The Panel opinion also fails to

grant to the District Court the deference

for its considerable discretion in

formulating jury interrogatories as

mandated by cases such as In re Merritt

Logan, Inc., 901 F.2d 349, 367 (3rd Cir.

1990), McNally v. Nationwide Ins. Co.,

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ee eo ee ee ee ee 2

i ee Se

815 F.2d 254, 266 (3rd Cir. 1987), Healey

v. Catalyst Recovery of Penna., Inc., 616

F.2d 641, 648 (3rd Cir. 1980), and

DeEugenio v. Allis-Chalmers Mfg. Co., 210

F.2d 409, 414 (3rd Cir. 1954). Had the

Panel opinion granted the proper

deference, it would have found that the

interrogatories were not unfair simply

because they did not specifically embrace

a particular theory, Merritt Logan, and

that the causation issues were subsumed

in the interrogatories, McNally, Healey.

Although “acknowledging that the

testimony of Dr. Kaplan as to the cause

of Mooney’s injury was, at times, opaque"

(18; emphasis added), the Panel opinion

nevertheless discerns "from his testimony

a clear indication of his belief that

Mooney suffered two distinct injuries: a

compression injury, resulting from the

impact of the initial dive, and a flexion

-24-

injury, resulting from the manner in

which Monahan rescued Mooney" (19). The

Panel Opinion declares, without citation

to the record, that "Kaplan distinguished

between the compression injury, which the

dive caused, and the flexion injury,

which fragmented the bones and

irreversibly damaged the spinal cora"

(Id.). Unfortunately, there is nothing

in the record to Support the Panel’s

declaration.

What the Panel misrepresents as two

distinct injuries was actually described

by Dr. Kaplan as the two components of

the same injury that occurred when

plaintiff’s head struck the bottom of the

pool. On direct examination, plaintiff’s

attorney asked Dr. Kaplan to assume that

plaintiff "received an injury when his

head contacted the bottom of the poo!*

(112; emphasis added), and inquired "what

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happens, what happened to his neck, what

is the mechanism of the injury, both as

to the bone and to the surrounding

structures supporting the bone, what

happens?" (Id.). The Panel Opinion

ignores the focus of the question upon

the contact at the bottom of the pool,

and Dr. Kaplan’s response describing a

single injury at that moment:

"Well, the injury is that

there is both impression,

that’s a vertical loading force

down, and flexion to cause the

bones to be comminuted in one

area more than the other, to

fragment one side more than the

other, and the spinal column,

excuse me, the spine cord, the

major nerve wires inside have

been in some way compromised"

(Id.; emphasis added).

Instead of the two separate injuries from

two separate forces invented by the

Panel, Dr. Kaplan’s testimony, like that

of the defense expert, actually

delineated a single spinal cord injury

produced by the coincidence of the

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ST SS SSS SSS SS Ss sss sls Ss sss esses rs shih ss sens

compressive and flexion forces generated

when plaintiff’s head hit the bottom of

the pool, causing, inter alia,

Plaintiff’s c-4 vertebra to break off a

piece of his c-5 vertebra and wedge it

between the C-4 and C-6 vertebrae

mechanically traumatizing and disrupting

the spinal cord in a c-6 complete nerve

injury (180-203). The following

detailed, chronological review of pr.

Kaplan’s testimony reveals that he

provided no factual basis for plaintiff’s

"aggravation" claim or for the Panel

opinion.

Dr. Kaplan was qualified (94) and

offered (102) by Plaintiff as an expert

in rehabilitative medicine with respect

to spinal injuries, and he acknowledged

that: he had no engineering degree (98);

had no degree in radiology and was not a

radiologist (Id.); was not licensed as a

-27=

neurologist or as an orthopedic surgeon

(98-99); had no biomechanical engineering

degree (99); and was not a physicist, a

mechanical engineer or the plaintiff’s

treating physician (Id.).

Dr. Kaplan stated that he had broken

his neck and had sustained an

"incomplete" spinal injury when he was

seventeen years old (93). Dr. Kaplan

explained that a "complete" spinal injury

is one in which there is no motor or

sensory function existing after 24 hours,

and that an "incomplete" spinal injury is

one in which there is some motor or

sensory function extant after 24 hours

after the accident (115), and he gave

himself as an example of an incomplete

spinal injury (115-116). Dr. Kaplan did

not, however, relate the circumstances of

his injury: how it occurred, what was

done for him, whether his bones were

-28=-

broken or whether his spinal cord was

Severed or injured; and he never compared

those circumstances with the

circumstances of Plaintiff’s injury.

While Dr. Kaplan stated that he was

able to place a person within the general

categories of complete and incomplete

spinal injuries, he admitted that it is

"very difficult to predict" the future of

an incomplete spinal injury, that the

"function can be anything from partial to

complete recovery", and that "each case

then becomes a very individual matter"

(116). At no time did Dr. Kaplan explain

whether plaintiff’s theoretical

incomplete injury would have resulted in

a partial or a complete recovery, nor did

he explain to what degree plaintiff would

have remained disabled had a spine board

been used.

When Dr. Kaplan examined plaintiff

-29°-

in connection with his January 25, 1990

report, in which, as even plaintiff’s

counsel agreed, he was of the opinion

that plaintiff had sustained an immediate

spinal cord injury not a removal injury

(175), Dr. Kaplan concluded that

plaintiff’s injury was a complete spinal

injury (117). At this juncture the

questions and answers quoted by the Panel

opinion occurred:

"QO. Okay. Now, Doctor, I want you

to assume that no spine board was

used in removing this man from the

pool. Are you able to express an

opinion regarding whether or not the

failure to use a spine board was a

significant factor in making him a

complete spinal injury?

"A. Yes, I am.

"Q. What is that opinion?

"A. I believe that it was a

significant factor in making him a

complete injury.

"Q. When you say, ‘I believe’, is

that speculative or with reasonable

medical certainty?

"A, That is with reasonable medical

-30—-

certainty.

‘

"Q. And by the words, ‘I .\believe, ’

you mean that it’s your opinion?

"A. Yes." (117-118)

Within both the primary question and the

conclusionary, non-factual opinion is the

assumption that the impact with the pool

bottom produced only an incomplete spinal

injury. At no point in pr. Kaplan’s

testimony did he state that the initial

injury was only incomplete and not

complete, and he did not give the factual

bases, if any, for this opinion.

On cross-examination by the Benasa

attorney, Dr. Kaplan read the emergency

room report and the Bellevue Hospital

Center history (163-166). Nothing in

this examination provided the Jury with a

factual basis to find that plaintiff had

Sustained only an incomplete spinal

injury when he struck the bottom of the

pool. On the contrary, the emergency

-31-

room report related "spinal cord injury

with quadriplegia due to C-5 compression

fracture without significant subluxation"

(165), and the Bellevue record related

"The patient is a 20 year old white male

who hit the bottom of a swimming pool at

5:00 p.m. after dive and became

immediately quadriplegic" (166).

None of those deficiencies was cured

by the detailed cross-examination of Dr.

Kaplan by counsel for MLA (167-207).

Rather, that testimony elicited further

confirmation of the defense contention

that plaintiff rendered himself a

permanent quadriplegic when his neck

fractured as he hit the bottom of the

pool. Dr. Kaplan confirmed that the

defendant’s expert’s conclusion, that the

cervical spine injury is the direct

result of the diving accident, was

consistent with the Bellevue report of

-32-

immediate quadriplegia at that moment

(174). Dr. Kaplan stated that "The nerve

injury would be described as C-6

complete" (180; emphasis added).

In fine detail, Dr. Kaplan confirmed

the fractures of the bones of plaintiff’s

neck and the mechanism of injury which

traumatized the spinal cord due to the

flexion and compression forces developed

when plaintiff hit the bottom of the pool

(180-203). Although Dr. Kaplan also

confirmed that plaintiff’s neck became

unstable because the ligaments were also

damaged by the contact with the bottom of

the pool, he never stated that this

instability caused the quadriplegia. Dr.

Kaplan admitted that he did not know

whether the flexion preceded the

compression or whether plaintiff was

changing the position of his head when he

impacted the bottom of the pool, because

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this was beyond Dr. Kaplan’s filed of

expertise.

On redirect examination, plaintiff’s

attorney elicited the concept of "spinal

shock" to suggest that the emergency room

report of immediate quadriplegia was

premature (211), but Dr. Kaplan admitted

that the term "does not speak to the

issue of whether it is complete or

incomplete" (211-212) and that the

emergency room report indicates when the

paralysis began (Id.). Nothing on

redirect examination provided a factual

foundation for plaintiff’s contrary

proposition that the paralysis began

later during the rescue attempt. Dr.

Kaplan did not provide a factual basis

for plaintiff’s "aggravation" clain,

contrary to the Panel opinion.

Claiming that "nothing in

Pennsylvania jurisprudence suggests that

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plaintiff’s inability to apportion

damages deprives that plaintiff of a

remedy" (22), the Panel Opinion holds

that "plaintiff must merely show that

there were, in fact, two separate causes"

(22-23) shifting the burden "to the

defendants to show which defendants had

caused what percentage of Mooney’s

injuries" (23). The Panel opinion notes

that "Although Huddell v. Levin, 537 F.2d

726 (3rd Cir. 1976), relied on by

defendants, might lead to a different

result, Huddell turns on New Jersey law,

and hence is inappropriate in this case,

which is governed by Pennsylvania law"

(24, n.6). On these points, the Panel

Opinion invents its own law, contrary to

controlling Pennsylvania law, and departs

from its mandate to decide cases in

accordance with the Court of Appeals’ own

precedents and prevailing state law, and

—35-

in the process depriving the appellee of

equal protection of the law, Eric R. Co.

v. Tompkins, 304 U.S. 64, 75, 58 S.Ct.

817, 820-1 (1938); 28 U.S.C. §1652.

Although it cites and purports to

follow Martin v. Owens-Corning Fiberglas

Corp., 515 Pa. 377, 528 A.2da 947 (1987),

the Panel Opinion ignores and contradicts

the basic rule, stated in Martin, that

"the burden of proving apportionment

rests on the party seeking it", 528 A.2d

at 949. The Panel opinion also does not

mention and conflicts with the prior

opinion of the Court of Appeals in Borman

v. Raymark Industries, Inc., 960 F.2d

327, 331 (3rd Cir. 1992), which echoed

that "’(T)he burden of proving

apportionment rests on the party

seeking it.’ Martin II, 515 Pa. at 382,

528 A.2d at 949 (citing Restatement

(Second) of Torts §433B(2))." See also,

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Bryant v. Girard Bank, 358 Pa. Super.

335, 517 A.2d 968, 975 (1986) (under

§433(B)(2) the burden of proof is on the

party seeking apportionment); Wade v.

S.J. Groves, 283 Pa. Super. 464, 424 A.2da

902, 907 n.2 (1981) (same).

In placing upon defendants the

burden "to avoid full liability by

apportioning damages and showing that

they are responsible only for a given

portion of plaintiff’s damages" or

Showing "which defendants had caused what

percentage of Mooney’s injuries" (23),

the Panel opinion, which provides no

precedent for its declaration,

contradicts established law.

In practical effect, the Panel

opinion also negates the jJury’s verdict

by compelling a new trial where the

defendants bear the risk of "full

liability" consequent to plaintiff’s

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dive, even though the jury has already

determined that plaintiff himself assumed

the risk of his injury, and guarantees

plaintiff a full recovery because the

defendants can do no more, under the

Panel opinion’s restrictions, than "show

which defendants had caused what

percentage of Mooney’s injuries". The

Panel opinion was not free to view or

redetermine the case in a manner

inconsistent with the jury’s verdict,

Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd., 369 U.S. 355, 82

S.Ct. 780 (1962). But the Panel opinion

does just that by failing to recognize

that the jury reached its verdict only

because it found that plaintiff rendered

himself a permanent quadr* egic when his

head hit the bottom of the pool, and then

by remanding for a new trial that ensures

plaintiff of the recovery to which the

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jury has said he is not entitled, and on

the “injury at rescue" claim that the

jury rejected.

Furthermore, contrary to the

declaration of the Panel opinion,

Pennsylvania jurisprudence has long

recognized that a plaintiff who is unable

to prove his or her aggravation of injury

claim is not entitled to a verdict on

that claim. Offensend v. Atlantic

Refining Co., 322 Pa. 399, 185 A. 745

(1936), cited in Martin, 528 A.2d at 949,

and in Pavorsky, 148 A.2d at 103, but

overlooked by the Panel opinion,

represents a clear instance in which a

plaintiff received no remedy beyond the

scope of medical testimony, because "If

the doctor were not in a position to make

an estimate of the extent of the

aggravation in point of time, the jury

should not have been allowed to hazard a

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guess beyond the period shown with

reasonable certainty", 185 A. at 747.

In addition, the Panel opinion’s

disregard of Huddell v. Levin as

inapposite to cases governed by

Pennsylvania law, conflicts with the

prior published opinions rendered by the

Court of Appeals in Habecker v. Clark

Equipment Co., 942 F.2d 210, 214 (3rd

Cir. 1991), and in Roe v. Deere and Co.,

855 F.2d 151, 153 n.2 (3rd Cir. 1988),

which held that Huddell is applicable to

cases governed by Pennsylvania law.

Application of the Huddell approach to a

case in which the plaintiff claims

damages for "second collision" injuries

or for aggravated injuries or for damages

beyond those sustained by conduct for

which the defendants are not responsible

is consistent with the basic rule that

the burden of proving apportionment or

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aggravation is accorded to the party

invoking it. Application of those

principles by the Panel in this case

would have affirmed the judgment that the

Panel now vacates because plaintiff

failed to provide the jury with

sufficient facts to find that his injury

was exacerbated on rescue and that his

Subsequent losses were greater than those

that would have flowed from the initial

injury at the bottom of the pool, for

which he alone has prope-:ly been held

responsible.

ARGUMENT

This Honorable Court should issue a

writ of certiorari to review and reverse

the new trial mandate of the Court cf

Appeals and to reinstate the judgment of

the District Court, because the Court of

Appeals so far departed from the accepted

and usual course of judicial proceedings

-4l1-

Ss sss

as to call for the exercise of this

Honorable Court’s power of supervision.

Although required to follow

controlling state law, the Court of

Appeals departed diametrically from it.

Although state law placed the burden of

proof on the plaintiff, the Court of

Appeals placed it on the defendants.

Although required to construe the

evidence in favor of the jury’s verdict

and to uphold the jury’s verdict in the

absence of prejudicial error, the Court

of Appeals invents and emphasizes

evidence contrary to the jury’s verdict

and sets the jury’s verdict aside simply

because the Court of Appeals thought that

the jury’s result was wrong. Although

the Court of Appeals believed that

plaintiff’s negligent rescue claim had

been dismissed, the record shows

unquestionably that the claim was net

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dismissed but rather was presented to but

rejected by the jury. Although the Court

of Appeals purports not to grant a new

trial on the jury’s verdict "on liability

for the dive", its decision completely

undermines the jury’s verdict, which

plead such liability exclusively on

plaintiff, by ordering a new trial to

shift that responsibility to the

defendants.

Had the Court of Appeals followed

the accepted and usual course of judicial

proceedings by applying rather than

contradicting established state law, by

respecting rather than negating the

jury’s verdict, and by adhering to rather

than creating its own record, the Court

of Appeals would and should have affirmed

the judgment of the District Court

entered pursuant to the jury’s verdict in

the defendants’ favor.

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CONCLUSION

For these reasons, the Benasa

appellees respectfully ask that this

Honorable Court issue a writ of

certiorari to the Court of Appeals,

reverse the decision of the Court of

Appeals granting a new trial, and

reinstate the jury’s verdict and the

District Court’s judgment.

Respectfully submitted,

ly).

CHARLES W. CRAVEN, ESQUIRE

1845 Walnut Street

18th Floor

Philadelphia, PA 19103

Attorney for Benasa

Appellees

DATED: 1/27) 4e

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