Reply Brief — Benasa Realty Co. v. Mooney

Supreme Court, U.S.

FILED

JAN 15 1993

NO. 92-1032 Hei ime usa |

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 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

V.

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

REPLY BRIEF FOR PETITIONERS

CHARLES W. CRAVEN

1845 Walnut Street

Philadelphia, PA

(215) 575-2626

Attorney for

Petitioners

— aad

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TABLE OF CONTENTS

TABLE OF CITATIONS 11

REPLY BRIEF FOR PETITIONERS 1

CONCLUSION 16

TABLE OF CITATIONS

Atlantic & Gulf Stevedores, Inc.

v. Ellerman Lines, 369 U.S. 355

(1962) 5, 15

Borman v. Raymark Industries, Inc.,

960 F.2d 327, 331 (3rd Cir. 1992) fs “2G

Bryant v. Girard Bank, 358 Pa. Super.335,

517 A.2d 968, 975 (1986) 7

Erie Railroad v. Tompkins,

304 U.S. 64 (1938) 6, 10, 15

Martin v. Owens-Corning Fiberglas

Corp., 545 Pa. 377, 528 A.2d

947, 949 (1987) ta, Be Bes te

Offensend v. Atlantic Refining

Co., 322 Pa. 399, i835 A.2e

745 (1936) a: ee

Wade v. S.J. Groves, 283 Pa. Super.

464, 424 A.2d 907, n.2 at 907

(1981) 7

atte

REPLY BRIEF FOR PETITIONERS

At trial, petitioner-defendants and

their co-defendants contended and

provided powerful, convincing evidence

that respondent-plaintiff rendered

himself a permanent quadriplegic when he

executed a running, not a racing, dive

contrary to his training and experience

that produced his injury when his head

violently contacted the bottom of the

pool.’ Plaintiff contended, in the

alternative, that liability for the

permanent quadriplegia consequent to the

dive, which he insisted was a shallow

'Page 5 of respondent-plaintiff’s

brief in opposition improperly resurrects

his attacks against the qualifications and

testimony of the defense expert, Dr.

Kazarian, which the District Court

properly rejected (Appendix to Petition,

69-77), and which plaintiff did not raise

in his appeal to the Court of Appeals.

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2 rested solely with the

racing dive,

defendants because of their negligence in

maintaining or marking the pool’s water

depth, or that the fracture upon contact

with the bottom of the pool produced only

an incomplete quadriplegia which was

aggravated to a complete quadriplegia

during the defendant’s rescue without

using a spine board. The District Court

refused to preclude plaintiff’s

alternative permanency-upon-negligent-

rescue claim and allowed all of the

parties’ contentions to be presented to

and decided by the jury (Appendix to

Petition, 221-228). Plaintiff argued

both aspects of his alternative claims to

the jury (215-220). The jury, however,

found that the defendants proved by "the

*The evidence underscored that

plaintiff would not have hit the bottom of

the pool if he had done a shallow racing

dive.

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fair weight and preponderance of the

evidence that the act of diving into the

pool involved in this case is one that

involves a risk of danger to anyone who

engages in that act" and that plaintiff

"Knowingly assumed such a risk" (43-44).

What the plaintiff’s brief in

opposition and the Court of Appeals

opinion erroneously overlook is that the

parties’ contentions and the structure of

the District Court’s special

interrogatories posited this threshold

factual issue that the jury necessarily

resolved in the defendants’ favor: did

plaintiff’s permanent quadriplegia occur

when his head hit the bottom of the pool

or did it occur when he was being rescued

afterwards? In order to conclude that

defendants had proven that the "act of

diving" involved that risk and that

plaintiff had assumed that risk, the jury

had first to find that plaintiff’s

permanent quadriplegia was caused by his

dive and not by the subsequent rescue.

If the jury had adopted plaintiff’s

contentions, it would have answered the

two assumption of the risk

interrogatories in the negative. That

verdict, which the jury did not return,

would have required the jury to reject

defendants’ claim that plaintiff’s

permanent quadriplegia was caused by the

dive and to accept plaintiff’s claim that

his permanent quadriplegia was not caused

by the dive but by the subsequent rescue.

While the Court of Appeals correctly

rejected plaintiff’s appeal for "a new

trial on liability for the dive because

of the erroneous readings of the

depositions" (30-31), the Court of

Appeals exceeded the scope of its

appellate powers and violated the

strictures of the Seventh Amendment and

this Honorable Court’s decision in

Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, 369 U.S. 355 (1962), by

remanding for a new trial on plaintiff’s

negligent rescue claim. What plaintiff’s

brief in opposition and the Court of

Appeals opinion erroneously overlook in

this regard is that this mandate negates

the jury’s verdict which placed

responsibility for plaintiff’s permanent

quadriplegia upon plaintiff and which

found that this injury was caused by

plaintiff’s risk-assuming dive and not by

the subsequent rescue. The Seventh

Amendment and Atlantic & Gulf Stevedores

Simply do not permit such a fundamentally

contradictory re-examination of the facts

determined by the jury’s verdict.

What plaintiff’s brief in opposition

and the Court of Appeals opinion also

erroneously overlook is that the new

trial mandate compounds this fundamental

constitutional error by compelling a new

trial, at which the likely verdict is one

in favor of plaintiff in contradiction of

the verdict originally rendered for

defendants,’ on the basis of legal

principles squarely at odds with

controlling state law in contravention of

the Rules of Decision Act, 28 U.S.C.

Section 1652, and Erie Railroad v.

Tompkins, 304 U.S. 64 (1938).

On the one hand, shifting the burden

of proving apportionment from the party

who advocated two apportionable injuries

to the parties who did not argue

*In the view of the Court of Appeals

opinion, once plaintiff demonstrates two

separate injuries, "the burden shifts to

the defendants to avoid full liability by

apportioning damages and showing that thev

are responsible only for a given portion

of plaintiff’s damages....to show which

defendants had caused what percentage of

Mooney’s injuries" (23-24).

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PS LS SS SGA IR EE ST IO LS SAE SER EN, ERI eo aio... irate tc eae

apportionment but rather advocated a

single, complete injury which was the

plaintiff’s sole responsibility, runs

directly counter to the controlling legal

principal that "the burden of proving

apportionment rests upon the party

seeking it", Martin v. Owens-Corning

Fiberglas Corp., 545 Pa. 377, 528 A.2d

947, 949 (1987); Borman v. Raymark

Industries, Inc., 960 F.2d 327, 331 (3rd

Cir. 1992); see also, Bryant v. Girard

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

975 (1986); Wade v. S.J. Groves, 283 Pa.

Super. 464, 424 A.2d 907, n.2 at 907

(1981).

In Martin, which the Court of

Appeals opinion cites, and in Borman,

which that opinion does not cite even

though known to and specially briefed at

the Panel’s request, the defendants

advocated apportionment, but the courts

refused to allow the juries to consider

the claim because the evidence was

insufficient to allow apportionment, even

though the evidence revealed two causes

of the claimed injuries. Contrary to the

view presented on pages 11-12 of

plaintiff’s brief in opposition, those

cases do not place the burden of proving

apportionment always upon the defendant,

nor do they hold that the advocate of

apportionment satisfies his "burden of

proof" simply by showing the existence of

two harms. Rather, the burden was placed

upon the defendants in those cases simply

because they were the parties seeking

apportionment, and the juries were not

allowed to provide the claimed

apportionment because the advocates

failed to adduce sufficient evidence to

permit the jury to make the

apportionment.

Proof that this analysis, rather

than that advanced by plaintiff’s brief

in opposition and the Court of Appeals

opinion, is correct can be found in the

Opinion of the Court in Martin. That

opinion drew upon the court’s earlier

opinion in Offensend v. Atlantic Refining

Co., 322 Pa. 399, 185 A.2d 745 (1936), to

formulate, 528 A.2d at 949, and to apply,

528 A.2d at 950, the controlling

apportionment principles. As revealed in

the quote from Marti

at pages 13-14,

infra, the Court in Offensend reduced a

plaintiff’s aggravation award because the

expert testimony as to the duration of

the aggravation of the pre-existing

tubercular condition claimed by plaintiff

was insufficient to support the jury’s

verdict.

Had the Court of Appeals in this

case honored its mandate under the Rules

of Decision Act and Erie v. Tompkins, it

would have followed Martin and Borman by

placing the burden of proving

apportionment upon plaintiff, the only

party in this case to advocate

apportionment. The Court of Appeals

exceeded its appellate powers by imposing

that burden upon the defendants.

On the other hand, both plaintiff’s

brief in opposition and the Court of

Appeals opinion erroneously fail to

recognize that Dr. Kaplan’s testimony, as

actually provided in the District Court

(92-214), rather than as misinterpreted

and refashioned by plaintiff and the

Panel, falls far short of the required

evidence to sustain plaintiff’s burden of

proving his claim that the impact with

the pool produced only a temporary, fully

curable injury that was aggravated to a

complete, permanent quadriplegia during

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the subsequent rescue.

The details of Dr. Kaplan’s

testimony are accurately delineated at

pages 24-34 of the Petition for Writ of

Certiorari, and are incorporated here by

reference. At this juncture it should be

sufficient to note that, first, neither

the brief in opposition nor the Court of

Appeals opinion provide record page

references for their assertion that Dr.

Kaplan described two distinct injuries:

a compression injury from the dive, and a

flexion injury from the rescue (Brief in

Opposition, p. 11; Opinion, Appendix to

Petition, p. 19), and none can be

provided because these statements simply

misinterpret what Dr. Kaplan described as

the two forces generated simultaneously

when plaintiff’s head hit the bottom of

the pool (112). Second, it is to be

noted that Dr. Kaplan testified that it

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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 an individual matter" (116),

and that Dr. Kaplan did not explain

whether plaintiff’s theoretical

incomplete injury would have resulted in

a partial or a full recovery, or to what

degree plaintiff would have remained

disabled had a spine board been used.

Finally, as to Dr. Kaplan’s delineation

of damages, it should be noted that his

testimony was couched in speculative

terms: "I don’t know if I could separate

that, what -- the medication usage, it

could be the same" (160), “It’s really

hard to say what job he might want and

how much help he might need" (162).

Had the Court of Appeals abided by

its duties to accurately review the

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record and to follow controlling law, it

would have found Dr. Kaplan’s evidence as

insufficient to allow the jury to make

the apportionment advocated by plaintiff

as the evidence found insufficient in

Martin, supra, 528 A.2d at 950 (footnotes

omitted):

The jury, although

presented with a great deal of

testimony concerning

appellant’s history and

physical condition, was

provided no guidance in

determining the relative

contributions of asbestos

exposure and cigarette smoking

to appellant’s disability. In

fact, two experts testified

that such a determination was

not possible. A situation

analogous to the instant case

arose in Offensend v. Atlantic

Refining Co., supra. There, a

jury award of damages for -

aggravation of an existing

tubercular condition was

modified (reduced), because the

expert testimony did not

address the duration of the

aggravation. "If the doctors

were not in a position to make

an estimate of the extent of

the aggravation in point of

time, the jury should have been

allowed to hazard a guess

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beyond the period shown with

reasonable certainty." Id.,

322 Pa. at 404, 185 A.2d 745.

Here, as in Offensend, the jury

cannot be expected to draw

conclusions which medical

experts, relying on the same

evidence, could not draw. The

causes of disability in this

case do not lend themselves to

separation by lay-persons on

any reasonable basis. Thus,

common sense and common

experience possessed by a jury

do not serve as substitutes for

expert guidance, and it follows

that any apportionment by the

jury in this case was a result

of speculation and conjecture

and hence, improper. “Rough

approximation" is no substitute

for justice.

Dr. Kaplan’s speculations cannot be

regarded as a proper basis for the jury

verdict sought by plaintiff.

Having chosen to litigate his claims

in the federal court system, plaintiff

should not now be heard to defer this

Honorable Court from exercising its power

and fulfilling its duty to ensure that

the Court of Appeals comply with federal

rights, simply by belittling this case as

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a diversity case. Even in a diversity

case, a federal appellate court should

not be permitted to disregard the rights

conferred by the Seventh Amendment, the

Rules of Decision Act, Atlantic & Gulf

Stevedores, and Erie. Because the Court

of Appeals transgressed those rights and

exceeded its appellate powers,

intervention by this Honorable Court is

necessary.

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CONCLUSION

For these reasons and those

delineated in their petition for writ of

certiorari, petitioners respectfully

request that this Honorable Court grant

the petition, 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,

(Ybirle LU. ptr

CHARLES W. CRAVEN, ESQUIRE

1845 Walnut Street

18th Floor

Philadelphia, PA 19103

(215) 575-2626

Attorney for Benasa

Petitioners

DATED: 1/12/93

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