# Petition for Writ of Certiorari — Litton Systems, Inc. v. Carroll

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1863%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 816

## Text

Ee: Suprens Court, U.S,

Supreme Court @f BE The WARE SPs ae

October Tem, 1999 OES ost

LITTON SYSTEMS, INC.,
Petitioner,

Vv.

MARTHA CARROLL; JAMES CARROLL;
ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS, individually and as next
friend and parent of Justin Gaddis and Derrick Gaddis, both minors;
RANDY GADDIS, individually and as next friend and
parent of Justin Gaddis and Derrick Gaddis, both minors;
FRED ALLEN CHAMBERS, individually and as next friend and parent
of Rusty Chambers, a minor, DEBBIE CHAMBERS, individually and
as next friend and parent of Rusty Chambers, a minor;
BARBARA MESSER; ANCY SIMONDS, individually
and as next friend and parent of Jennifer Simonds, a minor;
JAMES GREEN; MARVIN GARRETT; KENNY GREEN;

PEGGY GREEN; SANDRA HANCOCK, individually and
as next friend and parent of Chuck Hancock, a minor;

JAMES R. MESSER, individually and as next friend and parent of
Jonathan Messer, a minor; MELANIE MESSER, individually and as
next friend and parent of Jonathan Messer, a minor,

Respondents.

Petition For A Writ Of Certiorari
to The United States Court Of Appeals
for The Fourth Circuit

PETITITION FOR A WRIT OF CERTIORARI

Joe G. Hollingsworth
(Counsel of Record)

Donald W. Fowler

Bruce J. Berger

SPRIGGS & HOLLINGSWORTH

1350 I Street, N.W., 9th Floor

Washington, D.C. 20005 _

(202) 898-5800

Counsel for Petitioner
June 5, 1995

Baimar Legal Publishing Department, Washington, D.C. (202) 682-9800 2D"

Ce a ee wee eee CM gg

7s Sap em engi RIE r PEN OAS " ttn? PREIS 2m poem

i
QUESTIONS PRESENTED

1. May a federal district court, consistent with this
Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 113 S. Ct. 2786 (1993), submit complex toxic tort claims
to a jury in the absence of any admissible expert testimony on
the questions of (a) exposure and (b) specific medical causation?

2. May a panel of the Fourth Circuit in an unpublished
opinion ignore its published precedents on a dispositive issue?

‘

LIST OF PARTIES AND RULE 29.1 LIST

The parties to the proceedings below are listed in the
caption. The parent company of petitioner Litton Systems, Inc.
is Litton Industries, Inc., which was named as a defendant below
but was dismissed by the district court and was not an appellee.
There are no subsidiaries of Litton Systems, Inc. which are not
wholly owned.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ............. i
LIST OF PARTIES AND RULE 29.1 LIST... .. i
Tee re PS ow tte we ee IV
SEP os 5 sc so tele) Bree oe 8 1
I 5 nd Ms es hm bk aca l
CONSTITUTIONAL PROVISIONS AND RULES
ES ST aaa aa ee ane eee ee 1
STATEMENT OF THE CASE............ 2
REASONS FOR GRANTING THE WRIT ..... 7

I. Review Is Necessary To Resolve The Conflict

Between This Court’s Decision In Daubert v.

Merrell Dow Pharmaceuticals, Inc. And The

Fourth Circuit’s Ruling In This Case That

Toxic Tort Claims May Be Tried Without Any

Admissible Expert Testimony On Exposure

And Specific Medical Causation ......... 9
II. The Fourth Circuit’s Unpublished Decision,

Which Ignores Its Own Published Precedents,

So Far Departs From The Accepted And

Usual Course Of Judicial Proceedings As To

Call For An Exercise Of This Court’s Power

RR ak a tae: irae pe eee 14

RIE, ot ate es A ee 21

APPENDIX (Separately Bound)

iv

TABLE OF AUTHORITIES
Cases: Page
Addington v. Texas,
AR SAT RRO Gk: bi di A BGs Se ye 11

In re Agent Orange Product Liability Litigation,
996 F.2d 1425 (2d Cir. 1993), cert. denied,

TIGR RUPERT ea eee te 10-11
Blonder-Tongue Laboratories, Inc. v.

University of Illinois Foundation,

WE Wa es ie ke ee es 20
Brassette v. Burlington Northern, Inc.,

O37 F220 153 Cote Ge. T9G2) 503k fe eo hes 12

Brock v. Merrell Dow Pharmaceuticals, Inc.,
874 F.2d 307 (Sth Cir.), modified, 884 F.2d
166 (Sth Cir. 1989), cert. denied, 494 U.S.

CE ER oe i os oR Wie Wl os win? 13
Caldwell v. Texas, 137 U.S. 692 (1891) ...... 20
Claar v. Burlington Northern R.R. Co.,

29 F.3d 499 (Sth Cir. 1994)... 2... 1... 11
Commissioner v. McCoy, 484 U.S. 3 (1987)... . 14
County of Los Angeles v. Kling, 474 U.S.

Se ES i he sae ek gS eb coe 16
Daubert v. Merrell Dow Pharmaceuticals, Inc.,

43 F.3d 1311 (th Cur. 1995) ... ... 2 eres 11
Daubert v. Merrell Dow Pharmaceuticals, Inc.,

eke eS Ti, | i ore 1,2,4-5,8-10,13-15
Eppler v. Ciba-Geigy Corp., 860 F. Supp. 1391

Per A os oss Ak oe kee 11
Etheridge v. Norfolk & Western Ry., 9 F.3d 1087

Se SG bee aes oe ce wee a 15

Vv

TABLE OF AUTHORITIES (Cont.)

Cases: Page
Fitzgerald v. Manning, 679 F.2d 341

I, SOs coin db ehk eo oe be 12,17-18,21
Frazier v. Heebe, 482 U.S. 641 (1987). ...... 14
Galloway v. United States, 319 U.S. 372 (1943) . . 9
Garner v. Louisiana, 368 U.S. 157 (1961)... . . 21
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) . . . 19-20
Glidden v. Zdanok, 370 U.S. 530 (1962) ...... 19
Grayned v. City of Rockford, 408 U.S. 104 (1972) . 20
Jackson v. Virginia, 443 U.S. 307 (1979) ..... 21
Jordan v. Massachusetts, 225 U.S. 167 (1912). . . 20
Knudsen v. Secretary of the Department of

Health and Human Services,

35: F.36S43 (Pod. Ce. 1994) 2. 2k ae. 11
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980). . . 20
Mathews v. Eldridge, 424 U.S. 319 (1976). .... 20
Missouri v. Jenkins, 495 U.S. 33 (1990) ...... 19
Money v. Manville Corp. Asbestos Disease

Compensation Trust Fund, 596 A.2d

SOF Se ea ee ee 11-12
Moody v. Albemarle Paper Co., 417 U.S.

ee ace ke Se 5 4 oe arete ws 8 19
National Classification Comm’n v. United States,

765 F.2d 164 (D.C. Cir. 1985) ........ 17,19
Norfolk & Western Ry. v. Director, OWCP,

pe Weg te A.) 15

Ochoa v. Hernandez y Morales,
RP SOREN be he ee ea 8 20

‘aaa

vi

TABLE OF AUTHORITIES (Cont.)

Cases: Page
Porter v. Whitehall Laboratories, Inc.,

ee Fe lf :) rt ee 11
Rogers v. Missouri P.R. Co., 352 U.S. 500 (1957) . 9-10
Rohrbough v. Wyeth Laboratories, Inc.,

916 F.2d 970 (4th Cir. 1990) ........ 12,17-18,21

Sakaria v. Trans World Airlines, 8 F.3d 164
(4th Cir. 1993), cert. denied, 114 S. Ct.

WOU S CoN tae aes se 12
Salem v. United States Lines, 370 U.S. 31 (1962) . 11
Sterling v. Velsicol Chemical Corp.,

855 F.2d 1188 (6th Cir. 1988) ........ 11
Thompson v. Louisville, 362 U.S. 199 (1960) ... 20-21

Turpin v. Merrell Dow Pharmaceuticalls, Inc.,
959 F.2d 1349 (6th Cir.), cert. denied,

PER Sey See ee ee eres 13
United States v. Edge Broadcasting Co.,

SUS &. GA, See Gee te bo6 BS Fie ee + 508 16
United States v. Hasting, 461 U.S. 499 (1983) . . . 14
Universal Oil Prod. Co. v. Root Refining Co.,

pa Ge eee ee 20
Vitek v. Jones, 445 U.S. 480 (1980) ........ 19-20
Washington v. United States, 357 U.S. 348 (1958) . 21
In re Wildewood Litigation, __F.3d__, 1995

WL 226563 (4th Cir. 1995) .......... 18
Young v. United States ex rel. Vuitton et Fils S.A.,

Gas Vids PEE 05. k. Pa 0c Cee Ss

eer reeeeaaiil

vii

TABLE OF AUTHORITIES (Cont.)
Statutes and Rules:
Be ee sn FES aoe eS
Re ee LEED x aka 0kn. ee 6 we ee

Comprehensive Environmental Response,
Compensation, and Liability Act,
ere aaa

ae er re earn
POC nS vies ewe ewe ee
, S&B es are
RS Ee eee Eee
Fifth Amendment to the United States Constitution

Fourth Circuit Internal Operating
UE I et kw ein aw:

Resource Conservation and Recovery Act,
ee em ee ee eee

Safe Drinking Water Act, 42 U.S.C. §§ 300f. . . .

Miscellaneous:

Carnegie Study Commission on Science,
Technology, and Government, Science
and Technology in Judicial Decision
Making: Creating Opportunities and
Meeting Challenges (1993) ..........

Martha J. Dragich, Will The Federal Courts of
Appeals Perish if They Publish? Or Does
The Declining Use of Opinions to Explain
and Justify Decisions Pose a Greater Threat?,
44 Amer. L. Rev. 757 (1995) .........

Page

1-2,15

Viii

TABLE OF AUTHORITIES (Cont.)

Miscellaneous: Page
Environmental Protection Agency, Health Advisory
ee Pe 4 |
Federal Courts Study Committee, Report of the |
Federal Courts Study Committee (1990) .. . 7
Federal Judicial Center, Reference Manual on
Scientific Evidence (1994). .......... 7,10-11
Fowler V. Harper et al., The Law of Torts
© a SE ew eis ene li .
W. Page Keeton et al., Prosser and Keeton
on The Law of Torts § 41 (Sth ed. 1984) ... 11

Jenny Mockenhaupt, Assessing the Nonpublication
Practice of the Minnesota Court of Appeals,
19 Wm. Mitchell L. Rev. 787 (1993) ..... 16

Hon. Philip Nichols, Jr., Selective Publication of
Opinions: One Judge’s View, 35 Amer. L.
PV. Dae CAS 5 ee nen 2% 0 SS 17

William L. Reynolds & William M. Richman,
An Evaluation of Limited Publication in the
United States Courts of Appeals: The Price
of Reform, 48 U. Chi. L. Rev. 573 (1981). . . 16-17

Lauren K. Robel, The Myth of the Disposable
Opinion: Unpublished Opinions and
Government Litigants in the United States
Courts of Appeals, 87 Mich. L. Rev.
POU LEINED okra Se ee a Nie ae 16

Howard Slavitt, Selling the Integrity of the System
of Precedent: Selective Publication,
Depublication, and Vacatur, 30 Harv. Civ.
Rights-Civ. Lib. L. Rev. 109(1995) ..... 16

— ee Fe ee PP ‘aie

OPINIONS BELOW

The per curiam majority opinion for the Court of Appeals
for the Fourth Circuit and the dissenting opinion have not been
reported. They are reprinted in the Appendix hereto (“App.”),
p. la. The Fourth Circuit’s Order denying petitioner’s petition
for rehearing and suggestion for rehearing in banc has not been
reported. It is reprinted at App., p. 20a.

The memorandum decisions of the United States District
Court for the Western District of North Carolina have not been
reported. The decision adopting the recommended opinions of
the United States Magistrate Judge and granting summary judg-
ment to petitioner is reprinted at App., p. 22a. The decision
denying respondents’ motion to alter or amend judgment pursu-
ant to Fed. R. Civ. P. 59(e) is reprinted at App., p. 30a. The
Recommended Findings of Fact, Recommended Conclusions of
Law, and Memorandum and Recommendation of the United
States Magistrate Judge—all of which were adopted by the
district court—have not been reported. They are reprinted at
App., pp. 48a, 118a, and 181a respectively.

JURISDICTION

On February 1, 1995, the Fourth Circuit issued its opinion
affirming in part and reversing in part the district court’s grant
of summary judgment to petitioner. Petitioner’s timely petition
for rehearing and suggestion for rehearing in banc was denied
by the Fourth Circuit on March 6, 1995. App., p. 20a.

The jurisdiction of this Court to review the judgment of the
Fourth Circuit is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS
AND RULES INVOLVED

The text of Rules 104(a), (b) and 702 of the Federal Rules
of Evidence; Rule 56(b), (c), (e) of the Federal Rules of Civil
Procedure; Fourth Circuit Internal Operating Procedures 36.4

2

and 36.6; and the Fifth Amendment to the United States Consti-

tution appears in the accompanying, separately bound Appen-
dix.

STATEMENT OF THE CASE

On July 15, 1991, following extensive discovery, consid-
eration of detailed depositions, affidavits, and documentary
evidence, and full briefing and argument, the trial court in this
multi-plaintiff toxic tort case determined that the entirety of
respondents’ expert testimony on exposure and individual medi-
cal causation should be excluded as speculative and unreliable
under Fed. R. Evid. 702. In light of that ruling, the trial court
held, in accordance with established Fourth Circuit precedents,
that respondents lacked sufficient evidence to present their
personal injury claims to a jury and entered judgment dismissing
the claims.

On February 1, 1995, in an unpublished decision, a panel
of the United States Court of Appeals for the Fourth Circuit
unanimously affirmed the lower court’s exclusion of all of
plaintiffs’ expert testimony on exposure and specific medical
causation. By a 2-1 vote, however, the panel nevertheless
reversed the entry of summary judgment on respondents’ per-
sonal injury claims, reasoning that a lay jury could properly infer
exposure and specific medical causation even in the absence of
admissible expert opinions on those issues. This petition seeks
a writ of certiorari to review the panel majority’s reversal of
summary judgment, which flies in the face of this Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. and
ignores clear, established precedent in the Fourth Circuit itself.

The underlying facts in this case are set forth in the panel
majority opinion of the Fourth Circuit and may be briefly
summarized. Petitioner operates a manufacturing plant in Mur-
phy, North Carolina (“the plant”). For varying periods of time
respondents obtained drinking water from wells located across

re ra ees Ge iat meee em

3

a creek from petitioner’s plant. Jd., p. 3a. From 1967 until about
1974, petitioner used trichloroethylene (“TCE”), a degreasing
solvent, in its manufacturing process. Jd. In 1986, in the course
of closing a waste treatment system, petitioner detected TCE in
the groundwater under its plant. Jd Petitioner then tested
nearby residential wells, including those used by respondents,
and found extremely low concentrations of TCE in those wells.
Id., pp. 3a-4a. Petitioner immediately provided bottled water to
respondents and then placed and maintained carbon absorption
filters on their wells. Jd. p. 4a.

In 1988, respondents filed this diversity action in the
United States District Court for the Western District of North
Carolina, alleging, inter alia, that they had incurred personal
injuries as a result of encroachment of TCE into their wells. Jd.
Discovery proceeded pursuant to a case management order that
provided for the filing of dispositive motions on causation and
liability before addressing other issues. /d., pp. 51a-52a.

At the completion of discovery, petitioner filed dispositive
motions as to all of respondents’ claims. Jd, p. 66a. For the
purpose of these motions, petitioner assumed that the TCE found
in 1986 in respondents’ wells had originated at its plant. Jd
However, petitioner sought to exclude as scientifically unreli-
able under Fed. R. Evid. 702 the expert testimony proffered by
respondents to show that the TCE had entered their wells in 1970
and had been present in earlier years at concentrations much
higher than those measured in 1986.! These theoretical expo-

Specifically, by motion in limine, petitioner challenged the admissi-
bility of the opinion of respondents’ hydrogeologist, Mr. Gerald Moore, that
TCE from the plant had crossed under the creek and arrived at respondents’
wells in 1970 or at any other time prior to 1986. Mr. Moore had “acknow-
ledged that under normal conditions, TCE would not be transported in the
groundwater to the residential wells. ...” Jd, p. Sa (emphasis added). While
he had posited certain theoretical circumstances that would permit reversal
of normal groundwater flow, he could not offer any evidence that these
conditions had in fact ever occurred. Jd Petitioner also challenged the
admissibility of the opinions of Dr. Hugh Spencer, upon whom respondents

4

sure calculations were essential to respondents’ medical causa-
tion case, because the actual levels of TCE measured in 1986
were not regarded even by respondents’ own medical experts as
high enough to cause injury. Jd, pp. 7a, 1la.2 Applying an
analysis that anticipated this Court’s opinion in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), the
district court held these opinions were speculative and not
scientifically reliable and were, therefore, inadmissible. /d., pp.
9a-10a, 130a-34a.

Concurrently, petitioner moved for summary judgment on
medical causation. Among other things, petitioner pointed out
that respondents’ medical causation experts had based their
opinions explicitly on the inadmissible exposure calculations of

respondents’ hydrogeologist, Mr. Moore, and chemodynamist,
Dr. Spencer, and that, without those calculations, the medical

experts could not testify that any respondent had more likely

relied to provide evidence of dramatically higher levels of TCE in respon-
dents’ wells prior to 1986. id, p. 6a. The grounds for excluding Dr.
Spencer’s opinions included his lack of expertise in the area of concern, his
reliance upon Mr. Moore’s excluded opinions, the absence of any support in
the scientific literature for his made-for-litigation methodology, the fact that
his methodology had never been tested at other sites, and his concession that
his methodology was actually contradicted by available data from the site in
question. App., pp. 131a-34a.

‘ Measured concentrations of TCE in respondents’ wells averaged be-
tween two and 20 parts per billion (“ppb”). App., pp. 3a-4a. By way of
comparison, the Health Advisory for Trichloroethylene issued by the United
States Environmental Protection Agency (“EPA”), which was submitted as
part of the record below (see, e.g, App., p. 112a), establishes a Drinking
Water Equivalent Level for lifetime exposure, i.e., a level that is expected to
be protective of public health for non-carcinogenic endpoints, of 260 ppb.
Similarly, the Maximum Contaminant Level (“MCL”) for TCE established
for public drinking water systems under the Safe Drinking Water Act
(“SDWA”), 42 U.S.C. §§ 300f to 300j-10, is five ppb. That level reflects a
theoretical excess cancer risk for lifetime exposure to TCE calculated by EPA
to be 0.000026 percent, see 52 Fed. Reg. 25690, 25700 (1987), or one
millionth the risk of cancer for the population at large (one in four). App.,
p. 108a.

4

than not been injured as a result of his or her exposure to TCE.
The district court agreed and entered summary judgment against
respondents. Jd, pp. 22a, 134a-36a.5 Respondents’ sub-
sequent motion to alter or amend the judgment was denied. /d.,
p. 30a.

On February 1, 1995, the Fourth Circuit issued its decision
on respondents’ appeal.4 The Fourth Circuit’s per curiam
opinion affirmed in its entirety the district court’s exclusion of
respondents’ proffered expert testimony. Citing Daubert, the
Fourth Circuit upheld the district court’s ruling that Mr. Moore’s
opinions were “unreliable and, therefore, . . . inadmissible.”
App., p. 10a. Similarly, the Fourth Circuit upheld the exclusion
of Dr. Spencer’s opinions because they had “absolutely no
scientific support[,] . .. were imprudent and prone to enormous
error.” Jd. Likewise, the Fourth Circuit upheld the exclusion of
the testimony of respondents’ experts on specific medical cau-
sation because they relied upon Dr. Spencer’s inadmissible
calculations. Id, p. lla.

The Fourth Circuit’s decision thus left respondents without
any admissible expert testimony on medical causation, other
than general opinions that exposure to TCE at sufficient levels
and for sufficient duration is capable of causing symptoms like
those complained of by respondents (chiefly, headaches and
other vague neurologic complaints). As a result, respondents
could offer no expert testimony as to the levels of TCE to which
they were actually exposed, the timing or duration of such

> The district court also found other deficiencies in respondents’ prof-
fered medical causation opinions unrelated to the Moore and Spencer calcu-
lations. App., pp. 137a-43a. The Fourth Circuit found it unnecessary to
reach these independent bases for excluding the causation opinions. App.,
p. llan.S.

* The Fourth Circuit’s opinion was originally issued on January 13, 1995
as a per curiam decision without dissent. The court withdrew this opinion
sua sponte, however, on January 20, 1995, and reissued it on February 1,
1995 with the accompanying dissent.

6

exposures, or whether any of their claimed injuries were more
probably than not caused in fact by exposure to TCE.°

Having so ruled, the Fourth Circuit nevertheless reversed
the district court’s dismissal of respondents’ personal injury
claims. Jd, pp. 1la-12a. The Fourth Circuit concluded that a
jury could “infer” long-term exposure and specific medical
causation from the facts (a) that TCE had been used at the plant
in the late 1960’s and early 1970’s, (b) that, for the purpose of
its motions only, petitioner had not disputed that its plant was
the source of the TCE found in respondents’ weils in 1986, and
(c) that admissible expert opinions had been provided that
respondents’ complaints were of a type capable of having been
caused by exposure to TCE. /d, p. 11a.

In response, the dissenting panel member observed that she
did not “believe that a reasonable jury could find for [respon-
dents] without expert testimony ....” Jd, p. 15a. As she stated,
the three pieces of evidence remaining [to respondents
after the exclusion of their expert testimony] . . . are
simply not sufficient to support a reasonable inference
that Litton’s TCE caused plaintiffs’ health problems.
There must be some evidence that plaintiffs’ wells
contained TCE for a long enough time, and at a
sufficiently high concentration, to cause their health
problems.

Id., p. 16a. The dissent further stressed that, “[i]n a long line of
decisions in this circuit, we have emphasized that proof of

> The Fourth Circuit also reversed the dismissal of certain respondents’
property damage claims, based in part on the reasoning it applied to the
personal injury claims. App., pp. 12a-14a (lay jury could “infer” TCE
concentrations higher than 5 ppb). Finally, the Fourth Circuit affirmed the
dismissal of respondents’ regulatory claims under the Comprehensive Envi-
ronmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et
seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et
seq. App., pp. 14a-15a. These rulings are not at issue in this petition.

7

‘causation must be such as to suggest ‘probability’ rather than
mere ‘possibility,’ precisely to guard against raw speculation by
the fact-finder.” Jd. (citing Sakaria v. Trans World Airlines, 8
F.3d 164, 172-73 (4th Cir. 1993), cert. denied, 114 S. Ct. 1835
(1994)). The dissent observed that:

[t]he majority’s inference—from the fact that plain-
tiffs exhibited symptoms of a type consistent with
TCE exposure—that Litton’s TCE was present in
wells at a higher concentration than that measured in
1986 and that Litton’s TCE therefore caused substan-
tial injury and actual damage to certain plaintiffs, is
precisely the type of “raw speculation by the fact-
finder” that expert testimony concerning proof of
causation is intended to guard against.

App., pp. 17a-18a. Litton’s petition for rehearing was denied

on March 6, 1995.

REASONS FOR GRANTING THE WRIT

In recent years courts and juries have been increasingly
required to confront and resolve cases presenting complicated
scientific issues, particularly in multi-party litigation such as this
one involving toxic torts or environmental harm. The special
problems presented by these cases have been identified by such
bodies as the Federal Courts Study Committee® and the Carnegie
Commission on Science, Technology, and Government’ and
more recently led the Federal Judicial Center to publish a
detailed manual designed to assist the courts in managing the
scientific evidence these cases require. These same problems

© Federal Courts Study Committee, Report of the Federal Courts Study
Committee 97 (1990).

Carnegie Study Commission on Science, Technology, and Govern-
ment, Science and Technology in Judicial Decision Making: Creating Op-
portunities and Meeting Challenges (1993).

® Federal Judicial Center, Reference Manual on Scientific Evidence
(1994).

prompted this Court in Daubert to set out at some length the
standards to be applied, and the role to be played by the courts,
to assure that the scientific evidence presented to juries is
“reliable” and pertains to “scientific knowledge.” 113 S. Ct. at
2794-95.

To be sure, the Court’s decision in Daubert literally in-
volved construction of a federal rule—Rule 702. However, the
cornerstone of the Court’s opinion, and the fundamental princi-
ple underlying the rule, is that juries should not be asked to
render decisions on scientific issues unless provided with evi-
dence that is scientifically reliable, ie., that is “based upon
scientific validity.” 113 S. Ct. at 2795 n.9 (emphasis added).
For that reason, the Court held that trial judges must exercise a
gatekeeping role to assure that only evidence that is relevant and
scientifically reliable reaches a jury and, where such evidence
on critical issues does not exist, to take the case from the jury.
113 S. Ct. at 2796-98.

In this respect, the Fourth Circuit’s decision in this case
fundamentally conflicts with Daubert. By excluding as specu-
lative and scientifically unreliable respondents’ proffered expert
testimony on the critical issues of exposure and individual
medical causation, while at the same time allowing the jury to
draw inferences with respect to these very same issues, the
Fourth Circuit has sanctioned a jury verdict on scientific issues
that is devoid of evidentiary support having the requisite indicia
of scientific validity. Moreover, in the process the Fourth
Circuit has rendered futile the gatekeeping exercise required by
Daubert. If the entirety of expert scientific testimony on crucial
issues is excluded as unreliable but the case is still permitted to
go to the jury, then the fundamental point of the exercise has
been missed. To correct that error and to preserve the integrity
of Daubert, the Court should grant review.

In addition, the action of the Fourth Circuit here particu-
larly calls out for the Court’s exercise of its supervisory powers.

1

———

9

The published precedents of the Fourth Circuit are absolutely
clear that expert testimony on issues of exposure and individual
medical causation is required for recovery in cases such as this
one.? Yet, the panel majority decision below did not even cite
those precedents, much less attempt to reconcile them with its
decision in this case. The panel majority avoided the necessity
to do so by invoking Fourth Circuit internal rules permitting
designation of the opinion as unpublished. In so doing, the panel
majority has undermined the principle of stare decisis and so far
departed from the accepted and usual course of judicial proceed-
ings as to call for an exercise of the Court’s power of supervi-
sion. For this reason as well, the petition should be granted.

I. Review Is Necessary To Resolve The Conflict Between
This Court’s Decision In Daubert v. Merrell Dow
Pharmaceuticals, Inc. And The Fourth Circuit’s
Ruling In This Case That Toxic Tort Claims May
Be Tried Without Any Admissible Expert Testimony
On Exposure And Specific Medical Causation.

In Daubert, the Court held that federal district courts must
perform a “gatekeeping” function to assure that proffered expert
testimony is “reliable” and reflects “scientific knowledge.” 113
S. Ct. at 2795-96, 2798. The “overarching subject [of that
inquiry] is the scientific validity—and thus the evidentiary
relevance and reliability—of the principles that underlie a pro-
posed submission.” 113 S. Ct. at 2797. By precluding intro-
duction of opinion testimony that is not based on scientific
knowledge, Daubert thus underscored the precept that verdicts
must be based on reason, not speculation.!° In this case,

> See infra pp. 12, 17. The Fourth Circuit’s published precedents in this
respect are in accord with the uniform decisions of other state and federal
courts

10 See Galloway v. United States, 319 U.S. 372, 395 (1943) (“the
essential requirement is that mere speculation be not allowed to do duty for
probative facts, after making due allowance for all reasonably possible
inferences . . .”); Rogers v. Missouri P.R. Co., 352 U.S. 500, 564 (1957)

10

however, by affirming the district court’s exclusion of the
respondents’ expert opinions on exposure and specific medical
causation as unreliable and speculative while still allowing a lay
jury to draw unassisted inferences on those same issues, the
Fourth Circuit has assured that the verdict will be based on
speculation rather than scientifically valid evidence. This vio-
lates Daubert.

1. To decide this case, a jury will have to draw conclu-
sions as to ifand when prior to 1986 TCE from petitioner’s plant
crossed under the creek and into respondents’ wells in contra-
vention of what experts on both sides agree is the normal
direction of groundwater flow, how long the TCE was present
in respondents’ wells from 1970 to 1986, and to how much TCE
respondents were thereby exposed.!! In addition, the jury will
have to decide whether the TCE to which respondents were
exposed was both sufficient in dose to cause and did in fact cause
respondents’ health complaints.!? Each of these issues requires
proof by admissible expert evidence.

(opinion of Harlan, J.) (“it has always been the function of the court to see
to it that jury verdicts stay within that boundary, that they be arrived at by
reason and not by will or sheer speculation”) (citation omitted).
11 As recognized in the Federal Judicial Center’s Reference Manual on

Scientific Evidence (“Reference Manual’.

[A] plaintiff will not be able to succeed in a toxic tort case unless

he or she can prove adequate exposure to a toxic substance that

was somehow connected to the defendant. Even if an expert

testifies that Substance X can cause the plaintiff's injury, this

testimony will not suffice if the plaintiff failed to produce evi-

dence that he or she was exposed to Substance X... ata

significant level.

Reference Manual at 47-48 (footnotes omitted; emphasis added).

12 The case law is uniform in requiring as elements of proof in toxic tort
cases that a plaintiff establish both general causation (i.e., that the substance
in question is capable of causing the observed effect) and specific causation
(ie., that it did so in fact in the case before the court). See, e.g., Inre Agent
Orange Product Liability Litigation, 996 F 2d 1425, 1437 (2d Cir. 1993),

11

In prior decisions of this Court,!3 in learned treatises,!4
and in innumerable decisions of circuit courts of appeals,!>
lower federal courts,'® and state courts,!’ the necessity of

cert. denied, 114 S. Ct. 1125 (1994) (distinguishing general and individual
causation); Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1200 (6th
Cir. 1988) (recovery requires proof of both general and individual causation).
See also Reference Manual at 167 (“plaintiff must establish not only that the
defendant’s agent is capable of causing disease but also that it did cause the
plaintiff's disease”). 7

13 See Salem v. United States Lines Co., 370 U.S. 31, 35 (1962) (distin-
guishing “causes of action in which the law predicates recovery upon expert
testimony” from cases in which “men of common understanding, are as
capable of comprehending the primary facts and of drawing correct conclu-
sions from them as are witnesses possessed of special or peculiar training . .
.”); Addington v. Texas, 441 U.S. 418, 430 (1979) (“untrained lay juror [and]
... even a trained judge . . . [are] required to rely upon expert opinion” in
civil commitment proceedings).

14 Fowler V. Harper et al., The Law of Torts § 20.2 (2d ed. 1986) (“the
question of causal relation is so esoteric that lay minds cannot form any
intelligent judgment about it without expert aid”);W. Page Keeton ef al.,
Prosser and Keeton on The Law of Torts § 41 (Sth ed. 1984) (same).

1S See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F 3d
1311 (9th Cir. 1995) (summary judgment granted in Bendectin case after
exclusion of plaintiffs’ expert testimony); Kmudsen v. Secretary of the
Department of Health and Human Services, 35 F.3d 543, 548 (Fed. Cir. 1994)
(causation in toxic tort case relating to vaccine “must be supported by a sound
and reliable medical and scientific explanation”); Claar v. Burlington North-
ern R.R. Co., 29 F.3d 499, 503 (9th Cir. 1994) (summary judgment properly
granted in FELA case, despite lowered standard of causation, when plain-
tiff's evidence concerning specific medical causation properly excluded);
Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 612 (7th Cir. 1993)
(“expert testimony is necessary to determine the cause of . . . renal failure”).

16 See, e.g. Eppler v. Ciba-Geigy Corp., 860 F. Supp. 1391, 1394-95
(W.D. Mo. 1994) (“[tJhe task of proving that Aquazine proximately caused
Karen Eppler’s injuries inherently calls upon plaintiffs to present medical
and scientific evidence”).

17 See, e.g., Money v. Manville Corp. Asbestos Disease Compensation

Trust Fund, 596 A.2d 1372, 1376 (Del. 1991) (“proximate cause in matters

12

expert testimony in cases involving medically-complex issues
has been recognized repeatedly. Indeed, the published prece-
dents of the Fourth Circuit itself explicitly so hold. In Fitzgerald
v. Manning, 679 F.2d 341 (4th Cir. 1982), for example, the
Fourth Circuit held that “proof of causation—that is that the
defendant’s negligence was ‘more likely’ or ‘more probably’
the cause of the plaintiff's injury—requires expert testimony.”
Id. at 350 (emphasis added). See also Sakaria v. Trans World
Airlines, 8 F.3d at 172-73 (refusing to allow causation issue to
go to the jury when plaintiff's only expert testimony was inad-
missible); Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d
970, 972 (4th Cir. 1990) (“proof of causation must be by expert
testimony”). ”

2. The only remnant of respondents’ expert case to sur-
vive the Fourth Circuit’s scrutiny is testimony that exposure to
TCE under some conditions and at some level can cause symp-
toms of the type about which respondents complain. In the
absence of admissible expert testimony on hydrogeology and
environmental degradation of chemicals, however, the jury’s
knowledge that TCE was found in respondents’ wells in 1986
does not support a reasonable inference that TCE was there in
1970, or at any other specific time prior to when it was found,
or at any level sufficient to cause human health problems.!9

involving the pathology of a disease . . . is not within the common knowledge
of laymen and requires expert medical testimony”).

'8 This case may be distinguished, therefore, from those cases in which
expert testimony may be helpful but is not essential to establish a plaintiff's
claim. In a case challenging the adequacy of a product warning, for example,
expert testimony may assist the jury but is not typically required. A lay jury
is fully competent to draw conclusions about warning adequacy. See, e.g.,
Brassette v. Burlington Northern, Inc., 687 F.2d 153, 158 (8th Cir. 1982). A
lay jury is not similarly situated with respect to complicated medical and
scientific issues.

As the dissent observed, without the expert testimony of Mr. Moore
and Dr. Spencer, a jury could not reasonably “infer from the admitted
evidence that the contamination of the wells occurred prior to 1986.” App.,

————————

13

Similarly, in the absence of admissible expert testimony that
exposure to TCE more likely than not caused each respondent’s
specific health complaints, the evidence that respondents’ com-
plaints in general are of a type that can be caused by TCE still
requires the jury to speculate concerning whether that did, in
fact, occur in this case. In short, the Fourth Circuit’s decision
does not assure that a verdict will be reached that is based on
scientifically valid evidence, as required by Daubert; to the
contrary, by permitting the jury to draw inferences on these
issues after precluding respondents’ experts from doing so, the
Fourth Circuit has invited a verdict that amounts, in the words
of the dissent, to “raw speculation.”

3. In these circumstances, the Fourth Circuit panel ma-
jority was plainly wrong in reversing the trial court’s dismissal
of respondents’ claims. Indeed, in Daubert the Court made clear
that, even when expert testimony passes muster under Rule 702,
summary judgment is still appropriate if the admissible evidence
is sufficiently weak that the jury will be required to guess in
order to reach a verdict.29 In even more extreme cases such as
this, when the party carrying the burden of establishing medical

p. 17a. “No admissible expert evidence indicated the length of plaintiffs’
exposure .. . before 1986.” Jd

20 In Daubert, the Court emphasized the role of Fed. R. Civ. P. 56 to
assure that verdicts are based on reason:

{Ijn the event the trial court concludes that the scintilla of
evidence presented supporting a position is insufficient to allow
a reasonable juror to conclude that the position more likely than
not is true, the court remains free to direct a judgment. . . and
likewise to grant summary judgment. . . .

113 S. Ct. at 2798 (citations omitted; emphasis added). In support, the Court
cited with approval Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F 2d
1349 (6th Cir.), cert. denied, 113 S. Ct. 84 (1992), and Brock v. Merrell Dow
Pharmaceuticals, Inc., 874 F.2d 307 (Sth Cir.), modified, 884 F.2d 166 (Sth
Cir. 1989), cert. denied, 494 U.S. 1046 (1990). In both of these cases,
summary judgment was held to be appropriate, indeed required, even though
plaintiffs had proffered admissible scientific evidence.

14

causation cannot adduce admissible expert testimony in support,
Daubert necessarily means that summary judgment should be
entered for the defendant. Put differently, when hydrogeolo-
gists, chemists, toxicologists, and physicians are precluded from
offering opinions as to exposure and specific medical causation
in a case because such opinions are not “reliable” or based on
“scientific knowledge,” the jury must likewise be precluded
from rendering its own speculative opinion in the form of a
verdict on those same issues. Any other result renders the entire
“gatekeeping” exercise in Daubert a futility.

The Fourth Circuit’s decision in this case has transformed
Daubert from a case intended to assure that jury verdicts in cases
involving scientific issues are based only on good science to one
that permits juries to render verdicts in such cases on the basis
ofno science. To prevent that result and to assure that the Fourth
Circuit and other féderal courts fully comply not only with the
exact letter of Daubert, but with its underlying principles of
rational jury decisionmaking, this Court should grant the writ of
certiorari.

Il. The Fourth Circuit’s Unpublished Decision, Which
Ignores Its Own Published Precedent, So Far
Departs From The Accepted And Usual Course
Of Judicial Proceedings As To Call For An Exercise
Of This Court’s Power Of Supervision.

In this case, additional reasons exist for the Court to grant
certiorari as an exercise of its supervisory powers.2! As noted

" Under its supervisory powers, the Court may act “to protect the
integrity of the federal system,” Frazier v. Heebe, 482 U.S. 641, 647 n.7
(1987), or “to preserve judicial integrity,” United States v. Hasting, 461 U.S.
499, 505 (1983). Thus, the Court has invalidated local court practices that
are “irrational,” Frazier v. Heebe, 482 U.S. at 646, or which fail to comport
with “basic notions of fairness,” Young v. United States ex rel. Vuitton et Fils
S.A., 481 U.S. 787, 808 (1987). The Fourth Circuit’s failure to publish its
opinion should not and does not insulate its decision from appropriate review
by this Court. See Commissioner v. McCoy, 484 U.S. 3, 7 (1987).

15

above, the panel majority’s decision is not only at odds with
Daubert, it is also patently inconsistent with directly applicable
published precedents of the Fourth Circuit, which—but for the
panel’s use of an unpublished opinion—should have been bind-
ing as a matter of stare decisis. The panel majority’s disregard
of prior Fourth Circuit precedents threatens the important poli-
cies underlying stare decisis, places the district court on remand
in an intractable dilemma in which whatever action that court
takes will be erroneous, and has serious due process implications
in the circumstances of this case.

1. Oncea panel of the Fourth Circuit has decided an issue
and published its opinion, all future panels are required to adhere
to the precedent, unless and until the earlier decision is overruled
in banc.?2 This rule—mirrored in every circuit—supports pub-
lic confidence that the law is predictable and not dependent upon
the happenstance of, which judges are sitting on any particular
panel.

While recognizing the importance of stare decisis in its
published decisions, the Fourth Circuit has adopted rules per-
mitting panels to decide cases in unpublished opinions having
essentially no precedential value. See Fourth Circuit Internal
Operating Procedures (“IOP”) 36.4, 36.6; App., pp. 3a, 239a.
IOP 36.4 allows the Fourth Circuit to dispose of cases via
unpublished opinions even when the disposition reverses the
district court or when a member of the panel dissents. Jd.

The Fourth Circuit’s rules allowing disposal of cases via
unpublished “per curiam” opinions have great potential for
severely compromising the quality of justice afforded liti-

22 See, e.g., Etheridge v. Norfolk & Western Ry., 9 F.3d 1087, 1090 (4th
Cir. 1993) (decision of one panel becomes the law of the circuit unless
overruled by a subsequent in banc opinion); Norfolk & Western Ry. v.
Director, OWCP, 5 F.3d 777, 779 (4th Cir. 1993) (“[e]ven if we were so
inclined . . . a panel of this court may not overrule another panel’s decision”).

16

gants.23 Commentators have noted that “limited publication
reduces judicial responsibility by removing the constraints that
stare decisis places upon the court . . . [and] may permit judges
to approach their jobs . . . without the real thought and effort that
precedential decision making requires.” Reynolds, supra, at
581.24 “[U]npublished opinions ‘increase the risk of nonuni-

23 This Court has expressed concern about the non-publication practices
of the federal appellate courts. In United States v. Edge Broadcasting Co.,
113 S. Ct. 2696, 2702 n.3 (1993), for example, the Court found it “remarkable
and unusual” that the Fourth Circuit would affirm a judgment that an Act of
Congress was unconstitutional as applied via an unpublished per curiam
opinion. See also County of Los Angeles v. Kling, 474 U.S. 936, 938 (1985)
(Stevens, J., dissenting) (court of appeals’ “decision not to publish the
opinion or permit it to be cited—like the decision to promulgate a rule
spawning a body of secret law—was plainly wrong”). Commentators have
observed that the Fourth Circuit appears to publish fewer of its opinions than
do the other circuits. See Lauren K. Robel, The Myth of the Disposable
Opinion: Unpublished Opinions and Government Litigants in the United
States Courts of Appeals, 87 Mich. L. Rev. 940, 955 n.74 (1989) (“the Fourth
Circuit left an astonishing 80.2% of its opinions unpublished”); William L.
Reynolds & William M. Richman, An Evaluation of Limited Publication in
the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev.
573, 587 (1981) (“Reynolds”) (Fourth Circuit failed to publish 72.0% of its
opinions). See also Howard Slavitt, Selling the Integrity of the System of
Precedent: Selective Publication, Depublication, and Vacatur, 30 Harv.
Civ. Rights-Civ. Lib. L. Rev. 109, 110 (1995) (“Slavitt”) (criticizing Fourth
Circuit failure to publish a “ground-breaking decision”).

24 See also Jenny Mockenhaupt, Assessing the Nonpublication Practice
of the Minnesota Court of Appeals, 19 Wm. Mitchell L. Rev. 787, 802 (1993)
(“[uJnpublished opinions . . . reduce judicial accountability”); Slavitt, supra,
at 119 (“selective publication . . . compromise[s] the judiciary’s ability to
create a system of rules based on principle”); Martha J. Dragich, Will The
Federal Courts of Appeals Perish if They Publish? Or Does The Declining
Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater
Threat?, 44 Amer. L. Rev. 757, 800 (1995) (“selective publication practices,
and noncitation rules undermine certainty, predictability, and fidelity to
authority[;] . . . breed confusion about the relevance of various statements
from a court[;]. . . give the impression of arbitrary, cavalier action [; and] . .
. threaten confidence in the judicial system”).

17

formity; allow difficult issues to be swept under the carpet; and
result in a body of “secret law” practically inaccessible to many
lawyers.’” Dragich, supra, at 785 (quoting National Classifica-
tion Comm’n v. United States, 765 F.2d 164, 173 n.2 (D.C. Cir.
1985) (Wald, J.)).25

2. That potential for unfair prejudice was realized in the
present case. As noted above, the published opinions of the
Fourth Circuit indisputably require proof of specific medical
causation by expert testimony. In Fitzgerald, the Fourth Circuit
explicitly held: “proof of causation—that is that the defendant’s
negligence was ‘more likely’ or ‘more probably’ the cause of
the plaintiff's injury—vrequires expert testimony.” 679 F.2d at
350 (emphasis added). In Rohrbough, the Fourth Circuit reiter-
ated that “proof of causation must be by expert testimony.” 916
F.2d at 972. Petitioner relied on Fitzgerald and Rohrbough in
guiding its litigation strategy, formulating its dispositive mo-
tions, and arguing to the district court, and the district court
repeatedly cited these cases—and acted in accordance with their
holdings—in its opinion granting summary judgment.26 Yet,
despite the critical importance of Fitzgerald and Rohrbough as
the basis for the district court’s grant of summary judgment, the
Fourth Circuit’s opinion reversing the district court gives no
indication that the panel majority even considered these cases.

Had the Fourth Circuit been required to issue a published
opinion in this case, it would have had no choice but to confront
head-on the conflict with Fitzgerald and Rohrbough as well as

s Accordingly, commentators have long recommended that courts of
appeals publish all opinions in which the district court is reversed or in which
the decision is not unanimous. See Reynolds, supra, at 612, 618; Dragich,
supra, at 790-91, 801; Hon. Philip Nichols, Jr., Selective Publication of
Opinions: One Judge’s View, 35 Amer. L. Rev. 909, 926 (1986).

pis App., pp. 122a (sufficiency of evidence is governed by federal
law), 135a-36a (mere possibility of causation is insufficient), 136a (“plain-
tiffs must produce expert testimony concerning causation”), 208a-09a (plain-
tiffs must establish individual causation via expert testimony).

18

the prospect that its decision would itself become precedent.
Unless the panel majority had been both (1) able to find a
meaningful distinction between the Fourth Circuit’s earlier pub-
lished decisions and this case (or able to muster sufficient
support to overrule them) and (2) willing to establish as prece-
dent the proposition that toxic tort plaintiffs are entitled to reach
a jury notwithstanding the absence of expert testimony on
exposure and specific medical causation, it would have had no
choice but to affirm the district court’s grant of summary judg-
ment. By choosing not to publish its opinion, the Fourth Circuit
avoided the obligation to reconcile its decision with its own
squarely apposite precedent.2” It also avoided considering
whether allowing toxic tort claims to proceed without expert
testimony on exposure and specific medical causation would be
wise for the judicial system.

3. The Fourth Circuit’s decision not only conflicts with
Daubert and ignores Fourth Circuit precedent, it also leaves the
trial court on remand in an intractable dilemma. The published
opinions of the Fourth Circuit, exemplified by Fitzgerald and
Rohrbough, would require the trial court to grant a directed

27 The mischief worked by the failure to publish the opinion below is
illustrated not only by the conflict with prior published opinions, but by the
opinion’s inconsistency with a subsequent Fourth Circuit decision. In a
separate portion of its opinion below, see App., pp. 12a-14a, the panel
majority also reversed the district court’s ruling that respondents’ trespass
and nuisance claims should be dismissed because respondents could not
demonstrate that the extremely low levels of TCE measured in their weils
were of toxicologic concern. App., pp. 11 1a-14a, 154a-59a. In so ruling, the
panel majority concluded that proof that TCE had been measured on some
occasions at levels which exceeded the MCL of 5 ppb for public drinking
water systems, see supra note 2, sufficed to show “substantial injury or actual
damage” for purposes of a nuisance and trespass claim. App., p. 13a. Ina
published opinion issued by another panel in a different case just weeks later,
however, the Fourth Circuit held that claims for nuisance cannot be made
out unless “TCE levels . . . rise to the level of toxicological concern.” Jn re
Wildewood Litigation, F.3d__, 1995 WL 226563, *3 (4th Cir. 1995). The
“public” law of the Fourth Circuit and the “secret” law applied in this case
simply cannot be reconciled.

19

verdict in favor of petitioner at the conclusion of the evidence ~
because respondents will have put on no expert testimony
concerning exposure or specific medical causation. If that court
grants a directed verdict, the trial will clearly have been futile.
On the other hand, if the trial court believes it must deny a
directed verdict because of the Fourth Circuit’s ruling here, it
will then have to ignore what the Fourth Circuit has said in its
published decisions. The trial court should not be placed in this
impossible situation.

4. Nor is this simply a matter of internal judicial house-
keeping; to the contrary, in the circumstances of this case, the
Fourth Circuit’s action implicates important considerations of
due process. A litigant in the federal courts must be able to rely
upon the published precedents of those courts, unless and until
such precedents are properly overruled.2* A single panel’s
unbridled discretion to disregard the published precedents of the
circuit in which it sits, by means of issuing an unpublished
decision, is inconsistent with the very concept of ordered jus-
tice.29

Indeed, the Fourth Circuit’s unexplained sidestepping of
its published precedents in this case in an unpublished opinion
with no precedential effect arguably creates an arbitrary legal
standard applicable to petitioner alone in violation of due proc-
ess.59 As this Court stated in Giaccio v. Pennsylvania, 382 U.S.
399, 403 (1966):

78 See Missouri v. Jenkins, 495 U.S. 33, 46 n.14 (1990) (purpose of in
banc review is maintenance of intracircuit uniformity); Moody v. Albemarle
Paper Co., 417 U.S. 622, 626 (1974) (same).

29 As Judge Wald has observed, “it is imperative that we scrutinize our
selection of those cases to be disposed of . . . without precedential effect ever
more carefully so as to avoid confusion, repetition, nonuniformity, and even
skepticism about the way we do our job.” National Classification Comm'n
v. United States, 765 F.2d 164, 175 (D.C. Cir. 1985) (separate statement).

30 See Glidden v. Zdanok, 310 U.S. 530, 543 (1962) (“the practical
consideration underlying the doctrine of stare decisis [is] protection of
generated expectations”); Vitek v. Jones, 445 U.S. 480, 489 (1980) (due

20

Certainly one of the basic purposes of the Due Process
Clause has always been to protect a person against
having the Government impose burdens upon him
except in accordance with the valid laws of the land.
Implicit in this constitutional safeguard is the premise
that the law must be one that carries an understandable
meaning with legal standards that the courts must
enforce.

It is the essence of due process to preclude “ad hoc and subjec-
tive” determinations, Grayned v. City of Rockford, 408 U.S. 104,
108-09 (1972), and the quintessential means by which ad hoc
and subjective determinations are avoided is via stare decisis.
Stare decisis thus constitutes one of the most important “settled
usages and modes of procedure” of the federal courts.>!

process interest is created by “’objective expectation, firmly fixed in state
law and practice””) (citation omitted); Caldwell v. Texas, 137 U.S. 692, 697
(1891) (“due process is . . . secured by the law operating on all alike . . .”).

31 See Ochoa v. Hernandez y Morales, 230 U.S. 139, 161 (1913) (“all
authorities agree that [due process] inhibits the taking of one man’s property
and giving it to another, contrary to settled usages and modes of procedure,
and without notice or an opportunity for a hearing”). This Court has fre-
quently observed that judicial conduct is limited by the requirements of due
process. See, e.g., Blonder-Tongue Laboratories, Inc. v. University of Illi-
nois Foundation, 402 U.S. 313 (1971) (due process prohibits the application
of collateral estoppel to one who did not appear in the prior action); Universal
Oil Prods. Co. v. Root Refining Co., 328 U.S. 575, 580 (1946) (a court may
not deprive a successful party of its judgment on the ground the judgment
was obtained by fraud without a “proper hearing”); Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (“[t}he fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner”)
(quotations omitted); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (due
process right to be heard in a meaningful manner includes the right to an
impartial and disinterested tribunal); Jordan v. Massachusetts, 225 U.S. 167,
176 (1912) (due process requires mentally competent tribunal). Signifi-
cantly, the due process right to a meaningful hearing includes the right not
to be subjected to a judicial deprivation of property in the absence of evidence
on akey element of the claim against a defendant, cf. Thompson v. Louisville,

21

Rather than demonstrating fidelity to the settled usages and
modes of procedure of the law, the Fourth Circuit panel major-
ity’s decision reflects indifference. Its unexplained refusal to
follow the holdings of Fitzgerald and Rohrbough can only be
described as an “ad hoc and subjective” determination, raising
serious due process concerns and presenting clearly the dangers
of “secret law.” This Court’s intercession, in the exercise of its
supervisory powers over the lower federal courts, is essential to
avoid that result.

CONCLUSION
For all of these reasons, certiorari should be granted.

Respectfully submitted,

Joe G. Hollingsworth
(Counsel of Record)

Donald W. Fowler

Bruce J. Berger

SPRIGGS & HOLLINGSWORTH

1350 I Street N.W. 9 FI.

Washington, D.C. 20005

Counsel for Petitioner
June 5, 1995.

362 U.S. 199, 206 (1960) (“it [is] a violation of due process to convict and
punish a man without evidence of his guilt”); Garner v. Louisiana, 368 U.S.
157, 163 (1961) (convictions reversed on due process grounds because they
were “so totally devoid of evidentiary support”), or even in the presence of
evidence that is nevertheless insufficient to allow a rational trier of fact to
find against the defendant, cf Jackson v. Virginia, 443 U.S. 307 (1979);
Washington v. United States, 357 U.S. 348 (1958).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1863%3A1. Public record. Not legal advice.