Opposition Brief — Campbell v. Williams

No. 94-47

In The

Supreme Court of the United States

October Term, 1994

é

JOHN H. CAMPBELL, M.D.,

Petitioner,

versus

SHARLISIA SUTTLE WILLIAMS,

Respondent.

S

On Petition For A Writ Of Certiorari

To The Supreme Court Of Alabama

*

RESPONDENT'S BRIEF IN CPPOSITION

+

ANDREW T. CITRIN

(Counsel of Record)

MicHaAeL A. WoreEL

JOHN T. CROWDER, Jr.

Davip G. Wirtes, Jr.

CUNNINGHAM, BOUNDS, YANCE,

CROWDER AND BROWN

Post Office Box 66705

‘Mobile, Alabama 36660

205-471-6191

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVA

QUESTION PRESENTED

Whether Alabama’s non-apportionment rule, which

is designed to promote the state’s social policy of protect-

ing human life by holding all culpable tortfeasors liable

for the full measure of damages assessed by the jury,

violated petitioner’s due process or equal protection

rights where petitioner was provided the full panoply of

post-judgment protections approved in Pacific Mutual Life

Insurance Co. v. Haslip, 499 U.S. 1 (1991).

li

TABLE OF CONTENTS

Page

CADSR UL FIORE 6660 cece censpeneaveewuaes i

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SRE EE: SI Cee ES bin b's Wh as cee heen l

COURSE OF PROCEEDINGS BELOW .............. 4

SUFINGNGFAIY COR Pete 5 os ob n caecne ec ce dbewwe's 10

REASONS FOR DENYING THE PETITION......... 12

I. No Special or Important Reasons Exist for this

Court to Review Alabama’s Non-Apportion-

WOE TRUE. « «0 os0cd ve dangn cae saben eaeeeanens 12

II. Alabama’s Non-Apportionment Rule is Consti-

| rite Tr errr ee 17

A. Alabama’s Non-Apportionment Rule Does

Not Violate the Due Process Clause ..... 17

B. Alabama’s Non-Apportionment Rule Does

Not Violate the Equal Protection Clause.... 22

CURL LURROMIN 600 bin kos 0ds 00060600 wen eRe eee 23

ill

TABLE OF AUTHORITIES

Page

CASES

Collins v. Harker Heights, aS... 333 & oe

1061 (1992) ..... cece cece cece cece eee reeeececees 21, 22

Dandridge v. Williams, 397 U.S. 471 (1970) ....13, 14, 22

Davidson v. Dixon, 386 F. Supp. 482 (D. Del. 1974) .... 15

Gertz v. Welch, 418 U.S. 323 (1974) ......---e eee renee 16

Industrial Chemical v. Chandler, 547 So. 2d 812 (Ala.

CRDTFD vcisic duces tssbcdeteccecneusedsensceesees passim

| Ferree passim

Rochin v. California, 342 U.S. 165 ee: | rE 17

Smith v. Lightning Bolt Productions, Inc., 861 F.2d

363 (2d Cir. 1988) ......... cece cece reece enters 15

Williams v. Delta International Machinery Corp., 619

So. 2d 1330 (Ala. 1993) .......--- eee reece ree eeeee 13

RuLes OF PROCEDURE

Sup. Ct. R. 10.1 ....... cee cece ses eescecccecccrercss 12

OTHER AUTHORITIES

Thomas R. Trenkner, Annotation, Modern Develop-

ment of Comparative Negligence Doctrine Having

Applicability to Negligence Actions Generally, 78

A.L.R.3d 339 (1977 & Supp. 1993)....-----+++eees: 14

-— SE er

—— — —> —— -

No. 94-47

4

In The

Supreme Court of the United States

October Term, 1994

*

JOHN H. CAMPBELL, M.D.,

Petitioner,

versus

SHARLISIA SUTTLE WILLIAMS,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Alabama

+

RESPONDENT’S BRIEF IN OPPOSITION

°

STATEMENT OF THE CASE

Factuai Background

This petition arises out of an Alabama state court

judgment against the petitioner, Dr. John H. Campbell,

for causing the wrongful death of respondent’s decedent,

Ms. Lillie Mae Sumpter. On March 9, 1987, Ms. Sumpter

suffered second and third degree burns on her face,

mouth, and neck when 2850°F molten steel spewed on

her during the course of her employment. Ms. Sumpter

was immediately taken to the Holy Name of Jesus Hospi-

tal, which was located near her job site in Gadsden,

Alabama. Pet. at la.

th

The Holy Name of Jesus Hospital is not a specialized

burn treatment facility; however, like many hospitals, it

had specific written policies and procedures for dealing

with major burn patients. Pet. at 2a. Those procedures

required that patients with severe burns in the vicinity of

the mouth (such as Ms. Sumpter) be transferred to a

specialized burn treatment facility, such as the one

located at the hospital at the University of Alabama at

Birmingham (U.A.B.) in Birmingham, Alabama. Pet. at 2a.

The hospital’s procedures were consistent with the stan-

dard of care in the national medical community which

also required the transfer of major burn patients. Trial

Transcript [hereinafter Tr.] at 657. Despite the fact that

both the standard of care and the hospital’s policies

required Ms. Sumpter’s transfer to U.A.B., Dr. Campbell,

who is a general surgeon, not a burn specialist, decided

to admit Ms. Sumpter as his patient. Pet. at 1a; Tr. at 418.

The standard of care for patients who suffer severe

burns in the vicinity of the mouth requires an examina-

tion of the patient’s airway with a fiber-optic broncho-

scope to determine whether the patient has suffered

inhalation burns inside of her mouth and trachea. Tr. at

652. Inhalation burns are particularly common when the

patient suffers facial burns because the air inhaled by the

patient (while being burned) is often extremely hot. Tr. at

651. If the fiber-optic bronchoscopy reveals burns in the

patient’s airway, the standard of care requires that the

patient be intubated to prevent the swelling from the

burns inside the mouth and trachea from closing off the

patient’s airway. Tr. at 658. Despite the severity of Ms.

Sumpter’s burns in the vicinity of her mouth and the

extreme heat generated by the molten steel that burned

her, Dr. Campbeli did not examine Ms. Sumpter’s airway

with a fiber-optic bronchoscope, nor did he intubate her.

Pet. at 2a.

Within hours of her __ rival at the hospital, Ms. Sump-

ter’s eyes and lips had swollen shut. Pet. at 2a. Despite

Ms. Sumpter’s swelling and the obvious possibility that

her airway was closing off, Dr. Campbell, once again, did

not order that Ms. Sumpter be intubated, nor did he

conduct the fiber-optic bronchoscopy to determine

whether such swelling was in fact occurring. Pet. at 2a.

As Ms. Sumpter’s swelling worsened, she began to

experience respiratory distress, having such difficulty

breathing that she was “gasping” for air. Pet. at 2a; Tr. at

104-05. With each breath, Ms. Sumpter made audible

“wailing” or “crowing” sounds in an attempt to get air

into her lungs. Pet. at 3a. On several occasions, Ms.

Sumpter had such difficulty breathing that her body

“thrashed” about on her bed. Tr. at 114.

When Ms. Sumpter began having trouble breathing,

the attending nurse made several attempts to contact Dr.

Campbell te inform him of Ms. Sumpter’s condition and

to request orders about the proper treatment. Pet. at 3a.

When she finaliy reached Dr. Campbell on the telephone,

he ordered that Ms. Sumpter be immediately intubated.

Pet. at 3a. However, the severe swelling in her mouth,

tongue, and trachea made intubation impossible. Pet. at

3a. At that point, Dr. Campbeli ordered that an emer-

gency tracheostomy be performed. Pet. at 3a. According

to the nurse, Dr. Wilfredo Grana, the emergency room

physician on duty, was summoned to Ms. Sumpter’s

room te perform the emergency tracheostomy. Pet. at 3a.

According to Dr. Grana, however, he was not present at

the hospital at the time of Ms. Sumpter’s respiratory

distress. Pet. at 4a. In any event, no one performed an

emergency tracheostomy until after Ms. Sumpter suffered

complete respiratory arrest. Pet. at 2a. Ms. Sumpter

stopped breathing at 7:11 a.m. on March 10, 1987, a little

over 21 hours after she was admitted to the hospital. Tr.

at 132-33. Although she was eventuallv revived through

emergency resuscitative measures, she lapsed into a coma

from which she died on April 15, 1987. Pet. at 2a. The

testimony at trial revealed that, with proper treatment,

Ms. Sumpter would have survived her burns with the

need for only cosmetic surgery. Tr. at 330.

After Ms. Sumpter was revived, but while she still

remained in a coma, Dr. Campbell, apparently realizing

the terrible blunder he had committed, persuaded

another doctor to change his records to reflect that Ms.

mpter’s respiratory arrest was due to a “sudden

coughing spell” which had dislodged a mucous plug

which in turn blocked her airway. Pet. at 2a-3a. In fact,

this was the description Dr. Campbell contrived when he

wrote his own summary of the events which led to Ms.

Sumpter’s respiratory arrest. Pet. at 3a. However, the

attending nurse, who was with Ms. Sumpter during her

entire respiratory distress, testified that no such coughing

spell ever occurred. Pet. at 3a.

S

COURSE OF PROCEEDINGS BELOW

On February 17, 1989, Sharlisia Suttle Williams (“Ms

Williams”), as administratrix of the estate of Ms. Sumpter,

filed suit against Dr. Campbell, Dr. Grana, and the hospi-

tal. After hearing eight days of eviderce, the jury

returned a verdict finding Dr. Campbell and the hospital

jointly liable for Ms. Sumpter’s death. Pet. at 4a. The jury

returned a verdict in favor of Dr. Grana, apparently

believing his testimony that he was not present at the

time Ms. Sumpter suffered respiratory distress. Pet. at 4a.

The Alabama Supreme Court explained the jury’s verdict

as follows:

“This case went to the jury against three

defendants: the Hospital, Dr. Wilfredo Grana,

and Dr. Campbell. The jury returned a verdict in

favor of Dr. Grana, and against the Hospital and

Dr. Campbell. The case was submitted to the

jury against the Hospital on three theories:

vicarious liability for the alleged negligence of

Dr. Grana in failing to perform a tracheostomy;

independent negligence for failing to ensure

that Dr. Grana was qualified to perform a tra-

cheostomy; and vicarious liability for the

alleged negligence of the nurses in failing to

enforce the Hospital’s policy regarding the

transfer of burn patients. The case was submit-

ted to the jury against Dr. Campbell on [three]

separate negligence claims: that he deviated

from the standard of care by not transferring the

patient to the burn unit at U.A.B., as required by

the Hospital’s policy regarding treatment of

major burn patients, by failing to examine the

patient's airway by use of a fiber-optic broncho-

scope, and by failing to intubate the patient.

“The jury found in favor of Dr. Grana;

therefore its verdict against the Hospital was

based either upon the jury’s finding that the

nurses were negligent in not enforcing the Hos-

pital’s policy concerning transfer of burn

patients, or upon the Hospital’s failure to ensure

that Dr. Grana was qualified to perform a tra-

cheostomy.”

Pet. at 14a.

Pursuant to Alabama’s wrongful death statute, which

permits the assessment of punitive damages only, the jury

returned a joint verdict against both Dr. Campbell and

the hospital for $4 million. Pet. at 4a. During the jury’s

deliberations, however, the hospital settled with Ms. Wil-

liams on the basis of a hand-written “high low” agree-

ment, which was contingent upon the jury’s finding of

liability against the hospital.! Pet. at 5a. Since the jury

found the hospital jointly liable with Dr. Campbell and

assessed damages in excess of $1 million, the hospital

paid $1 million under the settlement agreement, leaving a

$3 million balance against Dr. Campbell alone. Pet. at 5a.

The trial court entered judgment against Dr. Campbell for

$3 million.

1 The settlement agreement read as follows:

“(1) Verdict Against Hospital & Campbell - cap of

1 million on Hospital. Floor of 750,000 -

regardless of amount of verdict.

“(2) Verdict Against Hospital without Campbell -

A) Anything under 750,000 -— Hospital pays

750,000.

B) Anything over 750,000 - Hospital pays

actual amount up to 1 million.

“[(3)] Verdict in favor of Hospital - Hospital pays

700,000 — Seven hundred thousand -.

“((4)] Mistrial — No settlement.”

Following trial, Dr. Campbell filed a motion for a

new trial and/or remittitur of the $3 million judgment

entered against him.? Pet. at 39a. At Dr. Campbell’s

request, the trial court conducted a hearing during which

it entertained Dr. Campbell’s arguments concerning the

alleged excessiveness of the jury’s verdict and the alleged

unfairness of requiring him to pay the balance of the

punitive judgment which was entered against both him

and the hospital. Pet. at App. B. After the hearing, during

which Dr. Campbell submitted false sworn testimony

about his annual income and net worth, the trial court

entered a lengthy order finding that the remaining

amount of the jury’s verdict was fully justified given the

severity of Dr. Campbell’s misconduct, his ability to pay

the judgment, his efforts to cover-up his wrongdoing, and

the need to deter others in the future. Pet. at 48a-52a.

Dr. Campbell then appealed the trial court’s judg-

ment to the Alabama Supreme Court, which conducted a

de novo review of the $3 million judgment. Pet. at App. A.

In a 30-page opinion, the Alabama Supreme Court

affirmed the judgment in its entirety, independently con-

cluding that the $3 million judgment was not excessive

given the specific facts and circumstances of this case.

Importantly, a large portion of the Alabama Supreme

Court’s opinion is dedicated to the issue of the constitu-

tionality of Alabama’s non-apportionment rule. Pet. at

2 Dr. Campbell did not, and has not, challenged the suffi-

ciency of the evidence.

5a-15a. After thoroughly reviewing the history and pur-

pose of Alabama’s Wrongful Death Act, and the

numerous state and federal opinions which have upheld

its constitutionality, the Alabama Supreme Court held:

“The nonapportionment of punitive damages

among multiple defendants in wrongful death

cases bears a rational relationship to a legitimate

state interest — the prevention of homicide — and

it thus does not violate constitutional guaran-

tees.”

Pet. at 14a. The court explained the rationale of its deci-

sion as follows:

“Dr. Campbell contends that, because the

jury is prohibited by law in this case from ren-

dering separate verdicts against each defendant,

the jury was unable to assess his individual

liability for the death of Ms. Sumpter and, thus,

the $3 million verdict rendered against him con-

stitutes more than his fair share of the total

liability for her death and is disproportionate to

his wrongdoing. He argues that the nonappor-

tionment rule, as applied to him in this case,

violates his constitutional rights.

* * *

“We note that Alabama has historically

treated actions resulting in death differently

from actions causing lesser injuries. The ‘enor-

mity of the wrong’ justifies the difference in

treatment. The Alabama legislature, beginning

in 1852, first sought ‘to prevent homicides’ by

the enactment of a wrongful death statute. By

allowing punitive damages to be assessed

against multiple defendants in wrongful death

actions without apportionment based upon the

degree of culpability of each, the legislature is

‘attempting to preserve human life by making

homicide expensive’. Louis Pizitz Dry Goods Co.,

supra, 274 U.S. at 116. Participation in actions

causing the death of a human being, even if

slight, can result in liability without regard to

the degree of culpability, and this result, the

legislature believes, will lead to greater dili-

gence in avoiding the loss of life. The legislature

has authorized the jury to ascertain an amount

of damages appropriate to the goals sought to

be achieved — preservation of life because of the

enormity of the wrong, the uniqueness of the

injury, and the finality of death. Where the enor-

mous wrong results from the combined actions

of several tortfeasors, the relative culpability of

multiple defendants is only one factor that the

jury may consider. Because the policy of this

state is to regard human life as being beyond

measure in terms of dollars, the jury must disre-

gard the decedent’s wealth or lack of wealth, it

must disregard the decedent’s potential for

accumulating great wealth or lack of potential to

accumulate wealth; and it must disregard his or

her talents or education, or lack of them, as well

as his or her station in life. The jury’s consider-

ation of the ‘enormity of the wrong’ includes

assessing the finality of death, the propriety of

punishing the wrongdoer or wrongdoers,

whether the death could have been prevented,

and, if so, the lack of difficulty that would have

been involved in preventing the death, as well

as the public’s interest in deterring others from

committing the same or similar wrongful con-

duct.”

A I

10

Pet. at 12a-13a. Following the denial of his application for

rehearing in the Alabama Supreme Court, Dr. Campbell

filed a timely petition for a writ of certiorari in this Court.

¢

SUMMARY OF ARGUMENT

The petition should be denied. No special or impor-

tant reason warrants this Court’s review. No “conflict”

exists within the meaning of Rule 10. Alabama’s non-

apportionment rule is strictly a matter of one state’s

preference for a particular tort law principle which pro-

motes the valid social policy of deterring the negligent

destruction of human life. Although many jurisdictions

have rejected the non-apportionment rule, they have

done so because of a policy preference, not constitutional

mandate. Not one of the cases cited by petitioner dis-

cusses the non-apportionment rule in the context of a

constitutional requirement. Thus, a “conflict” exists only

in the sense that the various jurisdictions have developed

different rules for the apportionment of punitive dam-

ages. None of these cases even suggest that federal con-

stitutional principles require an apportionment rule.

Even if this Court were to hear this case, the petition

will ultimately fail because Alabama’s non-apportion-

ment rule does not violate petitioner’s due process or

equal protection rights. Alabama’s non-apportionment

rule is rationally related to a legitimate state purpose. For

over a century, Alabama has ardently protected human

life by making the negligent destruction of human life

expensive. In Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S.

112 (1927), this Court allowed Alabama to impose

11

“extraordinary liability” in wrongful death cases in order

to further its special social policy of preserving human

life. Pizitz, 274 U.S. at 116. The “extraordinary liability”

permitted in Pizitz was the imposition of punitive dam-

ages against a completely innocent principal for the acts of a

negligent agent. Id. at 116. The decision in Pizitz was later

reaffirmed in Pacific Mutual Life Insurance Co. v. Haslip,

499 U.S. 1 (1991), when this Court permitted Alabama to

impose punitive damages against a principal for the

intentional fraud of an insurance agent. Haslip, 499 U.S. at

14. In both cases, this Court held that the imposition of

punitive damages against the corporations did not violate

due process because they were able “to guard substan-

tially against the evil to be prevented.” Pizitz, 274 U.S. at

116; Haslip, 499 U.S. at 14.

The present case is analogous to this Court’s deci-

sions in Pizitz and Haslip. The issue before the Court is

once again whether the imposition of punitive damages

against one defendant based in part upon the culpability

of another (in this case a joint tortfeasor) violates the

United States Constitution. Given the holdings in Pizitz

and Haslip, the non-apportionment rule easily passes con-

stitutional scrutiny because, unlike vicarious liability for

punitive damages, the non-apportionment rule applies

only when all the defendants are guilty of wrongdoing. If

a state may constitutionally impose punitive damages

against a completely innocent party, surely it may impose

disproportionate liability against those who are guilty of

wrongdoing, particularly when the genesis of the liability

is the death of a human being.

12

Finally, both the trial court and the Alabama Supreme

Court made an individualized assessment of the $3 mil-

lion jury verdict. Both courts determined that the verdict

was not excessive after examining, among other things,

petitioner’s culpability, his ability to pay, and the future

deterrence of others. Therefore, the procedures approved

of in Haslip, supra, were utilized in this case.

*

REASONS FOR DENYING THE PETITION

I NO SPECIAL OR IMPORTANT REASONS EXIST

FOR THIS COURT TO REVIEW ALABAMA’S NON-

APPORTIONMENT RULE

Alabama’s non-apportionment rule does not possess

any of the characteristics this Court considers “special

and important” under Rule 10.1. Sup. Ct. R. 10.1. Ala-

bama’s decision to adopt a non-apportionment rule in

wrongful death cases is purely a matter of one state’s

preference for a tort law which in no way implicates any

federal constitutional provisions.

While other states follow different apportionment

rules, Alabama’s non-apportionment rule does not “con-

flict” with the other states within the meaning of Rule

10.1. The “conflict” between the courts is not a conflict

related to the federal constitution, but is simply a differ-

ence of judicial preference in interpreting state laws, a

right preserved to the states. “[T]he Fourteenth Amend-

ment gives the federal courts no power to impose upon

the States their views of what constitutes wise economic

13

or social policy.” Dandridge v. Williams, 397 U.S. 471,

487-86 (1970) (emphasis added). Alabama’s non-appor-

tionment rule reflects the state’s social policy to vehe-

mently protect life and is therefore outside the scope of

review this Court has defined for itself. This Court

should, therefore, deny the petition.

A state’s decision to allow apportionment, or, as in

this case, to not allow apportionment, does not implicate

the federal constitution. In fact, none of the cases cited by

petitioner concerning the so-called “conflict” even men-

tions the constitutional ramifications of an apportionment

rule. The different rules regarding apportionment fol-

lowed by the various states indicate nothing more than

that the states are not uniform in their approach to this

issue. This, however, does not merit certiorari review.

If this Court were to review every area of the law

where state courts “conflict” in the fashion described by

petitioner, this Court would be essentially relegated to

the task of creating a uniform common law which would

supersede any “conflicting” approaches followed by the

states. Consider, for example, the area of comparative

negligence. Although “almost every common law juris-

diction in the world and 46 American states have

replaced the outmoded doctrine of contributory negli-

gence with some form of the doctrine of comparative

negligence,” Williams v. Delta International Machinery

Corp., 619 So. 2d 1330, 1334 (Ala. 1993) (Hornsby, C.J.,

dissenting), after nearly 170 years, the vestiges of the

doctrine of contributory negligence remain in some

states. Williams, 619 So. 2d at 1333. Even the states which

have adopted comparative negligence “conflict” in their

different applications of comparative fault. See generally

14

Thomas R. Trenkner, Annotation, Modern Development of

Comparative Negligence Doctrine Having Applicability to

Negligence Actions Generally, 78 A.L.R.3d 339 (1977 &

Supp. 1993). These “conflicts,” however, do not implicate

the due process or equal protection clauses; rather they

relate strictly to the states’ preference for one rule of tort

law over another — a matter this Court has traditionally

left to the states. Although petitioner’s arguments may be

well-suited for the floor of the Alabama legislature, they

do not implicate federal constitutional concerns.

“For this Court to approve the invalidation of

state economic or social regulation as ‘over-

reaching’ would be far too reminiscent of an era

when the Court thought the Fourteenth Amend-

ment gave it power to strike down state laws

‘because they may be unwise, improvident, or

yout of harmony with a particular school of

thought.’ ”

Dandridge v. Williams, 397 U.S. 471, 484 (1970) (emphasis

added).

The different approaches followed by the states in the

area of apportionment were addressed by the Second

Circuit in McFadden v. Sanchez, 710 F.2d 907 (2d Cir. 1983):

“At one time common law judges regularly

instructed juries to award punitive damages

jointly against all defendants or not to award

them at all. J. Gurarpr & J. Kircuer, Punitive

Damages § 9.09, at 27 (1981). In some jurisdic-

tions punitive damages were jointly assessed

based on the behavior of the most culpable

defendant, and in others a joint assessment was

made based on the behavior of the least culpa-

ble defendant. Comment, Exemplary Damages and

15

Joint Tortfeasors, 18 Wash. & Lee L. Rev. 270,

271-72 (1961).

“In modern times American jurisdictions

have come to the conclusion that punitive dam-

ages should be assessed on an individual basis.”

McFadden, 710 F.2d at 913. Although most states have

adopted an apportionment rule in punitive damages

cases, historically, each state has been free to adopt

whichever rule it believes will best further its social pol-

icy. As long as that policy choice furthers a legitimate

State interest, see infra section II.B., the Constitution is not

violated.

Similarly, no “conflict” exists within the meaning of

Rule 10.1 between Alabama’s non-apportionment rule

and any decisions of the federal courts of appeals. In

Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363 (2d

Cir. 1988), for example, the Second Circuit, in an action

alleging fraud, breach of fiduciary duty, and breach of

contract, decided against non-apportionment after inter-

preting New York state law.3 Smith, 861 F.2d at 371. Even in

the federal cases which have independently adopted an

apportionment rule, the courts specifically recognized

that the decision was truly a matter of policy preference,

rather than a product of constitutional mandate. See

McFadden v. Sanchez, 710 F.2d 907 (2d Cir. 1983); Davidson

v. Dixon, 386 F. Supp. 482 (D. Del. 1974). In McFadden v.

Sanchez, 710 F.2d 907 (2d Cir. 1983), for example, the court

adopted an apportionment rule for section 1983 claims. In

3 Procedurally, the issue of non-apportionment was not

even properly before the Second Circuit since it had not been

raised by either party. Smith, 861 F.2d at 374.

16

so doing, the court recognized that the issue of whether

to apportion punitive damages varied among the various

American jurisdictions:

“While thle apportionment] rule has not been

adopted in every jurisdiction, see, e.g., New York

Times v. Sullivan, 376 U.S. 254, 262, 84 S. Ct. 710,

716, 11 L. Ed. 2d 686 (1964) (Alabama law);

Gaston v. Gibson, 328 F. Supp. 3 (E.D. Tenn.

1969), it is the majority rule. Moreover, it is

accepted by commentators as the better view.

Thus, to the extent that common law authority

aids interpretation of section 1983, a construc-

tion requiring individual assessment of punitive

damages is indicated.”

Id. at 913-14 (citations omitted).

Thus, while there is a distinct minority and majority

view on the issue of apportionment of punitive damages,

Alabama’s non-apportionment rule does not “conflict”

with other jurisdictions within the meaning of Rule 10.

Rather, other jurisdictions simply view the apportion-

ment rule as a “better” rule. Alabama remains free to

decide which version of tort law it will apply to punitive

damage awards under its unique wrongful death statute.

This Court does “not, of course, invalidate state law

simply because [it] doubt[s a state’s] wisdom.” Gertz v.

Welch, 418 U.S. 323, 349 (1974).

In sum, Alabama’s non-apportionment rule reflects

only that Alabama prefers not to apportion punitive dam-

ages among joint tortfeasors. Although other states have

rejected this rule as outdated, the “conflict” concerns only

a policy choice which has traditionally been left to the

17

states. Thus, no “special and important reasons” warrant

this Court’s review within the meaning of Rule 10.

Il. ALABAMA’S NON-APPCRTIONMENT RULE IS

CONSTITUTIONAL

Even if this Court decides to hear this case, the

decision below will ultimately be affirmed because the

non-apportionment rule does not violate the Due Process

Clause or the Equal Protection Clause.

A. ALABAMA’/S NON-APPORTIONMENT RULE

DOES NOT VIOLATE THE DUE PROCESS

CLAUSE

Petitioner’s right to procedural due process has not

been violated. Even though the contours of due process

are vague, the review of a due process challenge

“demands of judges . . . alert tolerance toward views not

shared.” Rochin v. California, 342 U.S. 165, 171-72 (1952)

(emphasis added). Thus, actions violative of the due pro-

cess clause must “do more than offend some fastidious

Squeamishness or private sentimentalism,” but must

“shock[ ] the conscience.” Id. at 172.

Petitioner has not shown that Alabama’s non-appor-

tionment rule “shocks the conscience.” Instead, petitioner

has simply pointed out that other state courts have

adopted an apportionment rule and that those courts

might find Alabama’s non-apportionment rule offensive

to their “private sentimentalism.”

The Alabama Supreme Court's decision is fully con-

sistent with this Court’s 1927 review of an analogous

18

issue arising from Alabama’s Wrongful Death Act. In

Louis Pizitz Dry-Goods Co. v. Yeldell, 274 U.S. 112 (1927),

the petitioner argued that vicarious liability for punitive

damages against one who was completely innocent of any

wrongdcing violated due process. Rejecting this argu-

ment, this Court held:

“As interpreted by the state court, the aim of the

present statute is to strike at the evil of the

negligent destruction of human life by imposing

liability, regardless of fault, upom those who are in

some substantial measure in a position to pre-

vent it. We cannot say that it is beyond the

power of the legislature in effecting such a

change in the common law rutes, to attempt to

preserve human life by making homicide expen-

sive.”

Id. at 115-117 (emphasis added).

Similarly, in Pacific Mutual Life Insurance Co. v. Haslip,

499 U.S. 1 (1991), this Court held that Alabama’s common

law rule allowing the imposition of punitive damages

against a completely innocent principal for the acts of its

agent did not violate due process. Id. at 14. This Court

reasoned that the imposition of “exemplary damages on

the corporation when its agent commits intentional fraud

creates strong incentive for vigilance by those in a posi-

tion ‘to guard substantially against the evil prevented.’ ”

Id. (quoting Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S.

112, 116 (1927)). In permitting the imposition of punitive

damages against someone who did not himself contribute

to the plaintiff’s injury, this Court followed its prior

holding in Pizitz.

19

Although Haslip and Pizitz did not specifically con-

sider the non-apportionment rule, the liability imposed

by the non-apportionment rule is less burdensome than

the liability imposed in Haslip and in Pizitz. In those

cases, the corporate defendants were held liable for puni-

tive damages even though they were completely innocent

of any wrongdoing (i.e., it was their agents who commit-

ted the wrongdoing). Even though the principals were

not directly guilty of any wrongdoing, this Court held

that due process did not prohibit the imposition of puni-

tive damages because they were able, “in the manage-

ment of their affairs, to guard substantially against the

evil to be prevented.” Haslip, 499 U.S. at 14; Pizitz, 27

U.S. at 116.

In contrast, the non-apportionment rule applies only

when all defendants are guilty of misconduct. Therefore,

under this Court’s holding in Haslip and Pizitz, the non-

apportionment rule may, without offending due process,

impose “extraordinary liability” upon defendants who

are not as guilty as others (assuming, arguendo, that were

true in this case), but who were able, “in the management

of their affairs, to guard substantially against the evil to

be prevented.” As demonstrated in the statement of the

case, the jury found Dr. Campbell personally liable for

causing Ms. Sumpter’s death. In fact, as noted by the

lower court, Pet. at 14a, Dr. Campbell was the primary

tortfeasor responsible for Ms. Sumpter’s death.‘

* Actually, it was Dr. Campbell's negligence which initiated

the whole series of events which led to the hospital's liability. In

essence, the hospital was found liable because it did not “catch”

Dr. Campbell’s errors before it was too late. The primary theory

20

Furthermore, petitioner’s contention that Alabama’s

non-apportionment rule violates the principles enunci-

ated in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S.

1 (1991), is wholly without merit. Although the Court in

Haslip did not specifically consider whether Alabama’s

non-apportionment rule violated due process, this Court

did approve Alabama’s punitive damage procedures.

Haslip, 499 U.S. at 22. Specifically, this Court held that

Alabama provided adequate procedural safeguards

against arbitrary punitive damage awards. Id. at 22. The

procedural safeguards approved by this Court include a

proper jury instruction and a separate and independent

post-verdict review by both the trial court and an appel-

late court. Id.

Each of the three Haslip procedural due process pro-

tections were observed in this case. Petitioner concedes

that the trial court properly instructed the jury on puni-

tive damages. Pet. at 16. Petitioner contends, however,

that Alabama’s non-apportionment rule denied him an

“individualized assessment of appropriate deterrence

and retribution.” Haslip, 499 U.S. at 20. This is not the

case. Although the jury returned a general verdict against

both petitioner and the hospital (i.e, the total amount of

damages the jury believed would advance Alabama’s

social policy of punishment and deterrence), the general

verdict was “individualized” because both the trial court

against the hospital was that its nurses did not override the

decision of a physician (to admit Ms. Sumpter as a patient) - an

obviously difficult thing for a nurse to do. In other words, Dr.

Campbell was found liable for acts of active malfeasance or

commission, whereas the hospital was found liable only for acts

of passive nonfeasance or ommission.

21

and the appellate court reviewed the verdict and consid-

ered the isolated impact of that verdict on petitioner in

light of his wrongdoing. Specifically, in this case, because

the hospital settled with Ms. Williams, petitioner received

an “individualized assessment” of the remaining $3 mil-

lion judgment. Both the trial court and the Alabama

Supreme Court reviewed petitioner’s actions, and only his

actions, to determine whether the $3 million judgment

was excessive against him.> Therefore, petitioner’s claim

that the application of the non-apportionment rule elimi-

nates the procedures approved in Haslip is unfounded.é

° Dr. Campbell asserts (Pet. at 19), that in “multiple” defendant

cases, the trial court must follow the Haslip procedures as to each

individual defendant, but must apply them to a verdict covering all

defendants. This assertion is erroneous. As in this case, Alabama’s

post-judgment review procedures ensure that each defendant

receives an individualized assessment of the jury’s verdict as it

applies to his particular circumstances (i.e. his culpability and his

ability to pay the judgment); these procedures ensure, even in multi-

ple defendant cases, that the amount of punitive damages actually

recovered from each defendant does “not exceed an amount that

will accomplish society’s goals of punishment and deterrence.”

Industrial Chemical v. Chandler, 547 So. 2d 812, 837 (Ala. 1988).

© Nor does Alabama’s non-apportionment rule violate sub-

Stantive due process. Although petitioner briefly mentions a

substantive due process claim, Pet. at 8, he does not explain his

position or provide any authority to support it. Traditionally,

substantive due process has been limited to instances when the

government deliverately deprives someone of life, liberty, or

property without a legitimate governmental interest. Collins v.

Harker Heights, 112 S. Ct. 1061, 1069 n.10 (1992). In the present

case, petitioner has not been deprived of a property interest

because Alabama arbitrarily decided to deprive him of his prop-

erty, but because he wrongfully caused and contributed to the

death of Ms. Sumpter.

22

B. ALABAMA’/S NON-APPORTIONMENT RULE

DOES NOT VIOLATE THE EQUAL PROTEC-

TION CLAUSE

Alabama’s non-apportionment rule is rationally

related to a legitimate state interest and, therefore, does

not violate the petitioner’s right to equal protection

under the laws. “A statutory discrimination will not be

set aside if any state of facts reasonably may be conceived

to justify it.” Dandridge v. Williams, 397 U.S. 471, 485

(1970). The purpose of Alabama’s wrongful death statute

is to punish people who contribute to the negligent

destruction of human life and to deter them, and others,

from committing future acts which cause or contribute to

the death of a human being. Louis Pizitz Dry Goods Co. v.

Yeldell, 274 U.S. 112 (1927).

Moreover, Alabama’s non-apportionment rule does not vio-

late substantive due process because the rule furthers a legiti-

mate governmental interest — to punish and to deter people who

cause or contribute to the wrongful death of human beings.

“(T]he Due Process Clause ‘does not purport to supplant tradi-

tional tort law in laying down rules of conduct to regulate lia-

bility for injuries that attend living together in society.’ ” Collins,

112 S. Ct. at 1070 (emphasis added) (quoting Daniels v. Williams,

474 U.S. 327, 332 (1986)). Consequently, this Court has generally

denied requests to expand the concept of substantive due pro-

cess in a way that would require a state to affirmatively protect

a person’s property interest against harm which was nota result

of a state’s arbitrariness or oppression. Id. at 1069. Petitioner’s

apparent suggestion that this Court expand substantive due pro-

cess in such a way that would require Alabama to protect him

from a judgment in a wrongful death case would effectively

supplant Alabama’s choice of tort laws and the incentives/

disincentives it wishes to create thereby.

23

As petitioner acknowledges (Pet. at 21), the preserva-

tion of human life is a legitimate state interest. See also

Pizitz, 274 U.S. at 116. The non-apportionment rule pro-

motes that interest in wrongful death cases

“by making

homicide expensive”

even for those who may be less

culpable than others. Id: see Alabama Supreme Court's

opinion, supra at pp. 8-9. By alerting people to the fact

that even a 1% contribution toward the death of a human

being can result in liability for the full measure of dam-

ages assessed by the jury, Alabama’s Wrongful Death Act

serves as an especially powerful deterrent.

eo ,

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ANDREW T. Citrin

(Counsel of Record)

MicHaet A. Wore

JOHN T. Crowper, Jr.

Davip G. Wirtes, Jr.

CUNNINGHAM, Bounps, YANCE,

CROWDER AND Brown

Post Office Box 66705

Mobile, Alabama 36660

(205) 471-6191

Counsel for Respondent