Opposition Brief — Dorman v. Emerson Electric Co.

No. 94-488

IN THE

Supreme Court of the Hnited States

OcToBerR TERM, 1994

JOHN FREDERICK DorRMAN,

Petitioner,

V

EMERSON ELECTRIC COMPANY,

Respondent

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

KENNETH R. HEINEMAN

(Counsel of Record for Respondent)

Beuce D. Ryper

One Mercantile Center

Suite 2900

St. Louis, Missouri 63101

(314) 621-8575

Of Counsel

CoBuURN & CrRort

St. Lous Law Pnoting, Inc 13307 Manchester Rd St Lours,MO 63131 314-231-4477

BEST AVAILABLE COF

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........ccccccccscssecececcecscsceceees

SUMMARY OF ARGUMENT. .........cccccscscscecececeececseees

i

I.

II.

THE PETITION SHOULD BE DENIED BE-

CAUSE THE QUESTIONS PRESENTED

FOR REVIEW WERE NOT RAISED BE-

THE PETITION SHOULD BE DENIED BE-

CAUSE THiS COURT LACKS THE POWER

TO IMPOSE A FEDERAL CHOICE-OF-

LAW RULE IN DIVERSITY ACTIONS ......

TABLE OF AUTHORITIES

Page(s)

Cases:

Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3

CIA itivtincnsiniitsincidens thieusteiniiiaisasemamiiamasin rene 6

Dorman v. Emerson Electric Co., 815 F. Supp. 1287

Ae ee PIED: virsidntcspinnstationsiaaniciannsaeiaaiauaiaanaamiate 3

Dorman v. Emerson Electric Co., 23 F.3d 1354 (8th Cir.

aE oiabtvascitnediecduiinissddnapuiieensdeasandiaimaedia manana 3

EEOC v. Federal Labor Relations Authority, 476 U.S. 19

CITED scsicunncitesésnsiantnniedeusemmbaddigdeaamuaaianaaianias 3

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ..... 4-5,6

Kiaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487

SIP TED siseviskvisasshcibnadnbininsittinlbieasibanddinaaaaaaiaianne 5-6

Rogers v. Lodge, 458 U.S. 613 (1982) .........c.cccccceeeeeeees 4

Statutes:

ee is Oe ETD sicesesseuiitiicsinsdintianndinascianaseeiabnainn 3

Section 400.2-314, R.S.Mo. (1986) .......cccccseceesteeeeeees 3

No. 94-488

In THE

Supreme Court of the United States

OctToBeR TERM, 1994

JOHN FREDERICK DorMAN,

Petitioner,

we

EMERSON ELECTRIC COMPANY,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF ARGUMENT

This Court should deny the Petition for Writ of Certioruri in

this case because the issue it presents, whether this Court should

formulate and impose a uniform federal choice-of-law rule, was

not raised in the Court of Appeals. Furthermore, the position

argued by Petitioner was rejected by this Court more than fifty

years ago, on the grounds that this Court lacks the power to create

rules of federal common law to replace the rules of general

common law formulated by the courts of the several states.

ARGUMENT

This case involves a personal injury claim by Petitioner John

Frederick Dorman (“Dorman”), a citizen of Canada, against

Respondent Emerson Electric Company (“Emerson”), a Mis-

souri corporation with its principal place of business in Mis-

souri.' Dorman alleged that he was injured in British Columbia,

Canada while using a power miter saw designed by Emerson.

Dorman filed an action against Emerson in the United States

'Emerson has no parent companies. Its nonwholly owned subsidiaries are:

Aichi-Emerson Electric Co.; Astec (BSR) PLC; Controles Electromecanicos

De Mexico; Digital Appliance Controls Korea, Inc.; Asco India Limited;

Ascomatica S.A. de C.V.; Branson Korea Co., Inc.; Ohkura-Rosemount Co.,

Ltd.; Rosemount Holding AG; Rosemount AG; Rosemount A/S; Rosemount

(India) Limited; Rosemount Instruments Malaysia SDN BHD; Rosemount

Instruments Pty. Ltd.; Rosemount Instruments Ltd.; Rosemount S.A.R.L.;

Rosemount Portugal S.A.; Rosemount Shanghai Co. Limited; Valmet-

Rosemount Inc.; Xomox (India) Limited; Emerson Empreendimentos E

Participacoes Ltd. (EEPL); Dinatorque S.A. de C.V.; Emerson Electric

(U.K.) Limited; Hocking Holdings Ltd.; Hocking NDT Limited; Nippon

Hocking; AB Robotics Ltd.; Copeland Fluid Power Ltd.; Irish Pneumatic

Services Ltd.; Leroy-Somer S.A.; Bertrand-PolicoS.A.; Atelier de Bobinage

de Moteurs Electriques S.a.r.L; Construction Electriques du Nord S.A.;

Lorraine Services Electrique Electronique Electromecanique S.A.R.L.;M.LS.

Kerebel Provence S.A.R.L.; Marcel Oury S.a.r.L.; Navarre Services S.A.R.L.;

Ouest Electro Service S.A.R.L.; Radiel Bobinage S.A.R.L.; Societe Peaucelle

D’ Installations et Reparations Electriques S.A.R.L.; Leroy-Somer Burban

Argentina S.A.; Leroy-Somer Maroc S.A.; Societe Anonyme de Mecanique

et D’outillage du Vivarais S.A.; Societe Con Folentaise de Metalurgie S.A.,;

Societe de Mecanique et D’Electromthermie des Pays de L’ Adour S.A.;

Societe Commerciale des Ateliers de Constructions Electriques D’ Orleans

S.A.R.L.; Shanghai Branson Co. Limited; Ferco S.A; Fisher Controls A.G.;

Tianjin Fisher Valve Co. Ltd.; Nippon Fisher Company Ltd.; Oval Engineer-

ing Co. Ltd.; Precision Connector Designs, Inc.; Krautkramer Japan Ltd.;

Motorvenca - Emerson Motors, CA (VENEMCA); Samsung-Emerson Elec-

tric Co. Ltd. (SEECO); Swequipos, S A.; Componentes Avanzados de

Mexico, S.A. de C.V.; Transmisiones de Potencia Emerson S.A. de C.V.;

Tsubakimoto Emerson Co.; Vermont American Corporation.

sale A dee

District Court for the Eastern District of Missouri, basing juris-

diction on diversity of citizenship pursuant to 28 U.S.C. §

1332(a)(2). The district court, applying Missouri choice-of-law

rules, held that Canadian law applied and dismissed Dorman’s

claims based on breach of warranty premised on Section 400.2-

314, R.S.Mo. (1986), strict products liability, and res ipsa

loquitur. Dorman v. Emerson Electric Co., 815 F. Supp. 1287

(E.D. Mo. 1993). The United States Court of Appeals, Eighth

Circuit, affirmed that decision, while reversing the district court’s

inadvertent dismissal of Dorman’s negligence claim. Dorman v.

Emerson Electric Co., 23 F.3d 1354 (8th Cir. 1994).

Dorman has now petitioned this Court for a writ of certiorari.

Dorman does not claim that the courts below incorrectly applied

Missouri choice-of-law rules, nor that the courts below misap-

plied Canadian law. Instead, he argues for the first time that the

district court should have applied a federal choice-of-law rule

that would have required this case to be decided under Missouri

substantive law. For the reasons stated below, this argument

should be rejected, and Dorman’s petition should be denied.

I. THE PETITION SHOULD BE DENIED BECAUSE

THE QUESTIONS PRESENTED FOR REVIEW

WERE NOT RAISED BELOW.

Dorman presents for review by this Court the question of

whether this Court should formulate a uniform choice-of-law

analysis among the states. Petition for Writ of Certiorari at i.

Dorman, however, never raised this issue in either of the courts

below. Indeed, in his brief in the Eighth Circuit, Dorman Began

his argument by stating: “When determining whether Canadian

or Missouri law should apply, the Court must apply Missouri’s

choice of law rules.” Appellant’s Brief at 15.

This Court’s normal practice is to refrain from addressing

issues not raised in the Court of Appeals. See, e.g., EEOC v.

Federal Labor Relations Authority, 476 U.S. 19, 24 (1986);

Rogers v. Lodge, 458 U.S. 613, 628 n.10 (1982). Dorman has

shown no reason why this practice should not be followed in this

case. It is improper to ask this Court to adopt a rule with such far-

reaching implications as a uniform federal choice of law rule

without having developed the arguments for and against such a

rule in the lower courts. This is particularly true when, as here,

the rule Dorman asks this Court to adopt is contrary to clear

precedent established by this Court more than fifty years ago.

This Court should deny the Petition for Writ of Certiorari.

Il. THE PETITION SHOULD BE DENIED BECAUSE

THIS COURT LACKS THE POWER TO IMPOSE A

FEDERAL CHOICE-OF-LAW RULEIN DIVERSITY

ACTIONS.

Currently, each state formulates its own choice-of-law rules,

and federal district courts must apply the choice-of-law rules of

the state in which they sit. Dorman asks this Court to change the

present system, arguing that it results in confusion and uncer-

tainty for companies and individuals operating in the interna-

tional marketplace. Dorman’s unusual solicitude for companies

such as Emerson masks his dissatisfaction with the fact that

Missouri choice-of-law rules require the a}, cation of Cana-

dian law to his claims against Emerson. In any event, this Court

lacks the power to grant the relief Dorman seeks in his Petition,

the creation of a uniform federal choice-of-law rule.

The basis for the current system of determining choice of law

in diversity cases in federal courts is Erie R. Co. v. Tompkins, 304

U.S. 64 (1938). In that case, this Court unequivocally rejected

the idea that federal courts could develop a federal general

common law in diversity cases that was different from the state

law that would otherwise be applicable.

Except in matters governed by the Federal Constitution or

by acts of Congress, the law to be applied in any case is the

law of the state. And whether the law of the state shall be

jai Oe

declared by its Legislature in a statute or by its highest court

in a decision is not a matter of federal concern. There is no

federal general common law. Congress has no power to

declare substantive rules of common law applicable in a

state whether they be local in their nature or “general,” be

they commercial law or a part of the law of torts. And no

clause in the Constitution purports to confer such a power

upon the federal courts.

304 U.S. at 78.

The principles of Erie were applied to choice-of-law issues in

Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941). In

that case, a federal district court sitting in Delaware decided to

apply a New York statute in a diversity case pending before it.

The court of appeals affirmed, based on that court’s independent

determination of the applicable law without regard to Delaware

law. This Court reversed and remanded the decision for deter-

mination of the choice-of-law issue under Delaware law.

We are of opinion that the prohibition declared in Erie

Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.

1188, 114 A.L.R. 1487, against such independent determi-

nations by the federal courts extends to the field of conflict

of laws. The conflict of laws rules to be applied by the

federal court in Delaware must conform to those prevailing

in Delaware’s state courts. Otherwise the accident of

diversity of citizenship would constantly disturb equal

administration of justice in coordinate state and federal

courts sitting side by side. See Erie Railroad v. Tompkins,

supra, 304 U.S. at 74-77, 58 S.Ct. at 820-822, 82 L.Ed.

1188, 114 A.L.R. 1487. Any other ruling would do vio-

lence to the principle of uniformity within a state upon

which the Tompkins decision is based. Whatever lack of

uniformity this may produce between federal courts in

different states is attributable to our federal system, which

leaves to a State, within the limits permitted by the Consti-

tution, the right to pursue local policies diverging from

those of its neighbors. It is not for the federal courts to

thwart such local policies by enforcing an independent

“general law” of conflict of laws. Subject only to review by

this Court on any federal question that may arise, Delaware

is free to determine whether a given matter is to be governed

by the law of the forum or some other law. Cf. Milwaukee

County v. White Co., 296 U.S. 268, 272, 56 S.Ct. 229, 231,

80 L.Ed. 220. This Court’s views are not the decisive factor

in determining the applicable conflicts rule. Cf. Funkhouser

v. J. B. Preston Co., 290 U.S. 163, 54 S.Ct. 134, 78 L.Ed.

243.

313 U.S. at 496-97. This holding clearly precludes this Court

from granting the relief sought by Dorman.

This Court reaffirmed the holding of Klaxon in Day &

Zimmermann, Inc. v. Challoner, 423 U.S. 3 (1975). That case

involved a claim for damages for death and personal injury

arising out of an explosion in Cambodia. The district court,

sitting in Texas, applied Texas substantive law and entered a

judgment for the plaintiffs. The court of appeals affirmed. It

declined to apply Texas choice-of-law rules, acknowledging

that if it did so the substantive law of Cambodia would control

some or all of the claims. This Court vacated the court of appeals

judgment, holding: “A federal court in a diversity case is not free

to engraft onto [state choice-of-law] rules exceptions or modifi-

cations which may commend themselves to the federal court, but

which have not commended themselves to the State in which the

federal court sits.” 423 U.S. at 4.

These cases demonstrate that the relief sought by Dorman

here is simply not available. The principles of federalism

recognized and applied in Erie, Klaxon, and Day & Zimmermann

do not permit this Court to establish different choice-of-law rules

than those correctly applied by the district court and the court of

appeals below. This Court should deny the Petition for Writ of

Certiorari.

CONCLUSION

Based on the arguments and authorities set forth above,

Respondent Emerson Electric Company respectfully requests

that this Court deny the Petition for Writ of Certiorari.

Respectfully submitted,

Kenneth R. Heineman

(Counsel of Record for Respondent)

Bruce D. Ryder

One Mercantile Center

Suite 2900

St. Louis, Missouri 63101

(314) 621-8575

OF COUNSEL:

COBURN & CROFT