# Opposition Brief — Campbell v. Williams

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 868

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0031%3A3. Public record. Not legal advice.