Opposition Brief — Edmond v. Whitney

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941370 MAR 2 1995

No. 93-7P62 CE oF jr¢ CLERK

In The

Supreme Court of the United States

October Term, 1994

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JIM EDMOND,

Petitioner,

NEWMAN WHITNEY, A DIVISION OF NEWMAN

MACHINE COMPANY, INC. AND MEMPHIS

MACHINERY AND SUPPLY CO., INC.,

Respondents.

*

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT NEWMAN WHITNEY,

A DIVISION OF NEWMAN MACHINE

COMPANY, INC.’S BRIEF IN OPPOSITION

+

RALPH E. Roop

Counsel of Record

GHOoLSON, Hicks, NicHots &

WarD

Attorneys for Respondent

Post Office Box 1111

Columbus, MS 39703-1111

(601) 327-0662

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

OR CALL COLLECT (402) 342-2831

| BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the finding by the Court of Appeals that the

Plaintiff /Petitioner failed to meet his burden of proof

is the type of case which warrants review by this

Court?

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TABLE OF CONTENTS

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I. The grant of a Writ of Certiorari is inappropri-

ate when the only question to be presented for

review is whether the plaintiff adduced enough

evidence to establish proximate cause ........ 3

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Appendix A - Memorandum Opinion, United

States District Court for the

Northern District of Mississippi,

Eastern Division, Case No.

EC89-321-D-D, dated February

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TABLE OF CITATIONS

Page

Cases CITED:

NLRB v. Pittsburgh Steam Ship Co., 340 U.S. 498,

71 S.Ct. 453, 945 L.Ed. 479 (1951)....------ eee eee 4

General Talking Pictures Corporation v. Western

Electric Company, Inc., 304 U.S. 175, 58 S.Ct.

849, 82 L.Ed.2d 1273 (1938)......------ seer reer: 4

Sperry-New Holland v. Prestage, 617 So.2d 248

RO I andi sensu tees dvabeweeiveseeeuseecies 2

Rutes CITED:

Federal Rule of Civil Procedure | eee 2

Rule 10.1.(a), Supreme Court Rules ....-..------++++> 5

TO THE HONORABLE SUPREME COURT:

The respondent, Newman Whitney, a division of

Newman Machine Company, Inc., through its counsel of

record, respectfully requests that this Court deny the

Petition for a Writ of Certiorari filed by the Petitioner, Jim

Edmond.

OPINIONS BELOW

In addition to the opinion of the United States Court

of Appeals for the Fifth Circuit Affirming the Judgments

As a Matter of Law in favor of the Defendants entered by

the United States District Court for the Northern District

of Mississippi which are reproduced in the Appendix to

the Petition for Certiorari, the United States District

Court for the Northern District of Mississippi entered a

Memorandum Opinion holding in abeyance Edmond’s

Rule 60(b) Motion for Relief from Judgment pending

resolution of the appeal to the Fifth Circuit Court of

Appeals and issuance of a mandate. The Memorandum

Opinion is reproduced as an Appendix to this Brief.

+

STATEMENT OF THE CASE

In 1989, Jim Edmond (“Edmond”) filed a products

liability action against Newman Whitney, a division of

Newman Machine Company, Inc. (“Newman”) in the

United States District Court for the Northern District of

Mississippi. On December 8, 1992, after considering all of

the evidence and all inferences in a light most favorable

to Edmond (Petitioner’s App. A-13), the District Court

granted Newman’s Motion for Judgment as a Matter of

Law (Petitioner’s App. A-15).

While Edmond’s appeal to the Fifth Circuit Court of

Appeals was pending, Edmond filed a Motion for Relief

from Judgment pursuant to Federal Rule of Civil Pro-

cedure 60(b). In the Memorandum Opinion holding the

Rule 60(b) motion in abeyance pending resolution of the

appeal by the Fifth Circuit and issuance of a mandate, the

District Court, while noting that the basis for Edmond’s

Rule 60(b) motion was the pronouncement on Mississippi

products liability law as expressed by the Mississippi

Supreme Court in Sperry-New Holland v. Prestage, 617.

So.2d 248 (Miss. 1993), stated the application of products

liability law was not the sole basis for rendering judg-

ment as a matter of law and reiterated the Court’s prior

ruling that the plaintiff failed to carry his case on the

element of causation. (Respondent’s App. A-5).

The Court of Appeals, after considering the briefs,

reviewing the record and hearing oral argument, found

the District Court’s Grants of Judgment as a Matter of

Law were free of reversible error. The Court of Appeals

went on to hold that, regardless of the reasons assigned

by the District Court, Edmond’s inability to adduce any

competent evidence that his injury was proximately

caused by a defect in the design or manufacture of the

machine in which his injury was sustained doomed his

ability to recover and that failing to supply the necessary

nexus between a defect in the machine and the proximate

cause of the injury, Edmond simply failed to meet his

burden of proof. (Petitioner’s App. A-3-4).

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SUMMARY OF THE ARGUMENT

The grant of a Writ of Certiorari is inappropriate

when the only question to be presented for review is

whether the plaintiff adduced enough evidence to estab-

lish proximate cause.

ARGUMENT

I.

THE GRANT OF A WRIT OF CERTIORARI IS INAP-

PROPRIATE WHEN THE ONLY QUESTION TO BE

PRESENTED FOR REVIEW IS WHETHER THE PLAIN-

TIFF ADDUCED ENOUGH EVIDENCE TO ESTAB-

LISH PROXIMATE CAUSE.

Following a full trial on the merits, the District Court

found as a matter of ldw that Edmond, who rested his

case in chief without testifying as to how the injury

occurred to his hand, failed to carry his case on the

element of causation. (Respondent’s App. A-5). On

appeal, the Fifth Circuit reviewed the record and con-

cluded:

“ ...Edmond’s inability to adduce any compe-

tent evidence that his injury was proximately

caused by a defect in the design or manufacture

of the machine in which his injury was sus-

tained doomed his ability to recover. Edmond

did not, presumably because he could not, tes-

tify as to the proximate cause of his accident;

and the evidence he adduced - including, with-

out limitation, his expert’s testimony — did noth-

ing to supply the necessary nexus between a

defect in the machine and the proximate cause

of the injury.

Absent that, Edmond simply failed to meet his

burden of proof... ” (Petitioner’s App. A-4).

The United States Supreme Court is not the place to

review a conflict of the evidence nor to reverse a Court of

Appeals because were the Supreme Court in its place, it

would find the record tilting one way rather than the

other. NLRB v. Pittsburgh Steam Ship Co., 340 U.S. 498, 503,

71 S.Ct. 453, 945 L.Ed. 479 (1951).

Contrary to the petitioner’s assertion that the Court

of Appeals’ decision is in direct conflict with the Missis=

sippi Supreme Court, it is clear from the opinion (Peti-

tioner’s App. A-3-4) that the appellate court found it

unnecessary to consider Mississippi products liability law

because the plaintiff failed to establish proximate cause

and thus failed to meet his burden of proof. The granting

of a Writ of Certiorari is not warranted merely to review

the evidence or inferences drawn from it. General Talking

Pictures Corporation v. Western Electric Company, Inc., 304

U.S. 175, 178-179, 58 S.Ct. 849, 851, 82 L.Ed.2d 1273

(1938).

Finally, this does not represent a case in which a

decision of a United States Court of Appeals is in conflict

with a decision of another United States Court of Appeals

on the same matter nor has the Court of Appeals decided

a federal question in a way in conflict with a state court

of last resort; and, lastly, there is absolutely nothing to

suggest that the Court of Appeals so far departed from

the accepted and usual course of judicial proceedings, or

sanctions such a departure by a lower court, as to call for

—— >

a

an exercise of this Court’s power of supervision. Rule

10.1.(a), Supreme Court Rules.

+

CONCLUSION

Edmond’s Petition is nothing more than a request

that this Court review the record and determine that his

evidence was sufficient to establish proximate cause, and,

as such, should be denied.

DATED: March 2, 1995

Respectfully submitted,

RALPH E. Roop

Counsel of Record

GHOLSON, Hicks, NicHots &

WarD

Attorneys for Respondent

Post Office Box 1111

Columbus, MS 39703-1111

(601) 327-0662

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

JIM EDMOND AND LIBERTY MUTUAL Plaintiff

INSURANCE COMPANY

LIBERTY MUTUAL INSURANCE

COMPANY Intervenor

V. No. EC89-321-D-D

NEWMAN-WHITNEY, A DIVISION OF

NEWMAN MACHINE COMPANY, INC.,

ET AL Defendant

MEMORANDUM OPINION

(Filed Feb. 22, 1994)

Final judgment and Order granting judgment as a

matter of law was entered on December 8, 1992 in the

above styled cause. A motion for new trial was denied on

February 3, 1993. A notice of appeal to the Fifth Circuit

Court of Appeal was filed on March 4, 1993. The court

has been advised by the parties that the appeal before the

Fifth Circuit is moving forward in due course with appel-

lant’s brief having been filed and brief from the appellee

due soon. Upon review of the pending motions on the

court’s docket, the undersigned notes that despite the

appeal plaintiff returned to this court on June 8, 1993, and

filed a motion for relief from judgment pursuant to Fed-

eral Rule of Civil Procedure 60(b). The basis for the Rule

60(b) motion is found in the change in Mississippi prod-

ucts liability law as expressed by the Mississippi Supreme

Court in Sperry-New Holland v. Prestage, 617 So. 2d 248

(Miss. 1993). The undersigned has addressed, at length,

App. 2

the Pestage decision and its impact on Mississippi prod-

ucts liability cases. For a full discussion, see Batts v. Tow-

Motor Forklift, Co., et al, No. DC88-71-D-D, February 8,

1994, (Davidson, J.), designated by the undersigned for

publication by West Publishing Company in Federal Sup-

plement.

Of course, the traditional rule of procedure is that the

district court is divested of jurisdiction upon the filing of

the notice of appeal. Citing Lairsey v. Advance Abrasives

Co., 542 F.2d 928 (5th Cir. 1976), movant argues that the

district court can indicate to the appellate court if it is

inclined to grant the Rule 60(b) motion, thus allowing the

movant/appellant to seek a remand from the appellate

court to the district court where the motion is pending.!

Moore’s Federal Practice contains an excellent summary of

the proper procedure that the district court should follow

in such instances.

The traditional rule is that when an appeal

is taken from the district court, the latter court is

divested of jurisdiction except to take action in

aid of the appeal until the case is remanded to it

by the appellate court. As a result, the district

court is without power to grant relief under Rule

60(b), whether the motion is made prior to or

after the appeal is taken, except with permission

of the appellate court.

Some circuits that have adhered to the tradi-

tional rule have required appellate court permis-

sion for the district court to entertain a Rule

60(b) motion. These are the Third, Tenth, and

1 See Ingraham v. United States, 808 F.2d 1075, 1081 (5th Cir.

1987) (indicating approval of the approach outlined in Lairsey).

App. 3

Second, Circuits, although cases in the latter two

circuits have not been completely uniform. It

has been held that the appellate court will grant

such permission, i.e., a remand, only if there is a

reasonable showing that if leave is given, the

trial court might properly grant the Rule 60(b)

motion. Also it has been held that the traditional

rule will not bar a district court from hearing

the motion when the appeal is not yet docketed

in the appellate court. Many circuits, cognizant

of the time and expense involved in seeking

relief in the appellate court have, on the basis of

the district court’s jurisdiction to act in aid of an

appeal departed somewhat from the traditional

rule and held that the district court, without

appellate court permission, has the power to

both consider, and deny Rule 60(b) motions.

However, these circuits also take the position

that if the district court indicates it is inclined to

grant the motion, remand must be sought and

obtained before the district court can take such

action. Cases in the First, Fifth, Sixth, Seventh,

Eighth, Tenth, and District of Columbia Circuits

support this position. This procedure is also

endorsed in some Second Circuit cases,

although that circuit adheres to the traditional

jurisdictional rule.

The Ninth Circuit, which adheres to the

view that the filing of a notice of appeal divests

the district court of jurisdiction to dispose of the

motion without a remand from the court of

appeals, has in the past followed different pro-

cedures. Some of its cases have required

movants to file the 60(b) motion in the district

court asking if that court would grant the

motion, while others have directed that parties

apply for an order indicating that the district

App. 4

court would entertain such a motion. However,

the procedure appears to have unified with the

requirement that movants ask the district to

indicate if it wishes to entertain the motion or to

grant it, and then, if appropriate, move the

appellate court for a remand.

7 Moore’s Federal Practice, para. 60.30[2] (2d ed. 1993).

Consistent with the procedure discussed in Moore's,

this court’s research reveals that the district court may

consider a Rule 60(b) motion while an appeal is pending,

if certain steps are taken to preserve judicial resources of both

the trial and the appellate court. If the district court is

inclined to grant the requested relief sought in the Rule

60(b) motion, a remand or “other permission” must be

obtained from the appellate court. Brown v. United Insur-

ance Company of America, 807 F.2d 1239, 1241-42 n.1 (5th

Cir. 1987); Alvestad v. Monsanto Co., 671 F.2d 908, 911 n.2

(5th Cir. 1982); United States v. Hitchmon, 602 F.2d 689, 692

(5th Cir. 1979); Lairsey v. Advance Abrasives Co., 542 F.2d

928, 932 (5th Cir. 1976); Dow Chemical, USA v. Consumer

Product Safety Commission, 464 F. Supp. 904, 906 (W.D. La.

1979). To this end, it is incumbent upon the movant/

appellant to notify the appellate court that a rule 60(b)

motion is pending in the trial court and request that no

action be taken on the appeal pending disposition of the

motion by the court below. Dow Chemical, 464 F. Supp. at

906 n.2. In such cases, the appellate court can “routinely

stay” the appeal. Id.

However, in the case sub judice, the appellant has

informed the district court that he has taken no steps to

apprise the appellate court that he has a Rule 60(b)

motion pending in this court. Furthermore, the district

App. 5

court expresses no inclination at this time to grant the

Rule 60(b) motion on the merits. While the undersigned

has addressed the change in Mississippi’s products lia-

bility law in its opinion in Batts, supra, that issue was not

the sole basis for rendering judgment as a matter of law.

The trial of this products liability case in this court was

somewhat unique. Plaintiff rested his case-in-chief with-

out testifying as to how the injury occurred to his hand.

Instead, plaintiff relied upon a res ipsa loquitur theory_of

causation. Pursuant to Edwards v. Sears, Roebuck and Com-

pany, 512 F.2d 276, 287 (5th Cir. 1975), the court ruled, in

addition to the “open and obvious” bar, that plaintiff had

failed to carry his case on the element of causation. The

plaintiff argues that for a strict liability case, causation

need not be proved.

In a strict liability case, plaintiff is relieved of the

burden of proving fault, which is supplied as a matter of

law. Toliver v. General Motors, 482 So. 2d 213, 215 (Miss.

1986); State Stove Manufacturing Co. v. Hodges, 189 So. 2d

113, 119 (Miss. 1966). In this sense, “fault” consists of the

“duty, breach” elements of a traditional negligence

action. Whether or not plaintiff can rely upon a res ipsa

loquitur concept to show how the injury occurred remains

a viable, active issue for appellate review.

Therefore, for the reasons stated herein, the district

court is of the opinion that the appeal to the Fifth Circuit

Court of Appeals should proceed. Despite the recent

developments in Mississippi products liability law which

affect this case, another justiciable, outcome-determinative

issue remains in the case. This issue is ripe for appellate

review. Obviously, plaintiff’s Rule 60(b) motion will be

App. 6

held in abeyance pending resolution of the appeal and

issuance of a mandate.

SO ORDERED.

THIS 22nd day of February, 1994.

/s/ Glen H. Davidson

United States

District Judge