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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 915

## Text

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rendered in an opinion marked "NOT FOR
PUBLICATION"?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

— Ee

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
O60 U.8.0. GiNSOTR) 6 cet we ese 6S
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

-10-

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.

-lli-

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

-12-

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).

-13-

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.

-14=-

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

-15-

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

-16-

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

-17-

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

-20-

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

-22-

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.,

-23-

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

-25-

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

-26-

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

-33-

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

-34-

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,

-36-

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

-37-

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

-39-

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

-40-

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

-42-

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.

-43-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1816%3A1. Public record. Not legal advice.