# Petition for Writ of Certiorari — Diamant Boart, Inc. v. Martin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 933

## Text

In The

SUPREME COURT OF THE UNITED STATES
October Term, 1997

Diamant Boart, Inc..,
Petitioner,
wa

Joyce Martin, Individually and as
Personal Representative of the Estate
of Harry O. Martin, deceased,
Respondent.

Petition for a Writ of Certiorari to the United States
Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Dennis W. Cross Timothy W. Bouch
Counsel of Record Young, Clement,
Mary L. Barrier Rivers & Tisdale, L.L.P.
Lee T. Lauridsen 28 Broad Street
Morrison & Hecker L.L.P. Charleston, SC 29042
2600 Grand Avenue (803) 720-5488
Kansas City, MO 64108
(816) 691-2600
Counsel for Petitioner

September 3, 1997

QUESTIONS PRESENTED

l. Does the South Carolina common law, which
usurps the jury’s discretionary authority and requires the jury
to award punitive damages if the jury finds evidence of
reckless conduct, violate petitioners Seventh Amendment
right to trial by jury.

2. Does the trial court’ instruction, which
charged the jury to consider any statutory infraction, including
an innocent or technical one, evidence of reckless conduct
supporting an award of punitive damages, violate petitioner's
right to due process pursuant to the Fouiteenth Amendment.

PARTIES

In Martin v. Diamant Boart America, Inc., which was
before the Fourth Circuit as case number 96-1414,
plaintiff/appellee was Joyce Martin, individually and as
personal representative of the Estate of Harry O. Martin.
Defendant/appellant was Diamant Boart, Inc. (f/k/a Diamant
Boart America, Inc.) Therefore, the respondent in this case is
Joyce Martin, in both her individual and representative
capacities. Diamant Boart, Inc., is the sole petitioner.

“Diamant Boart America, Inc., is now known as Diamant Boart, Inc.
Diamant Boart, Inc.’s parent corporations is Diamant Boart, S.A. It has
no non-wholly owned subsidiaaries.

ll

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED..._ 2
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REASONS FOR GRANTING THE WRIT. 7
I. The unique South Carolina common

law which usurps the jury’s
discretionary authority and requires it
to award punitive damages is a
fundamental attack on rights preserved
by the Seventh Amendment and
deprived DBA of its right to a trial by

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Il. By permitting the jury to consider any
statutory violation, including an
innocent or technical infraction, as |
evidence supporting an award of
punitive damages, the district court's
instructions offend the minimum
culpability requirements imposed by
the Due Process Clause of the
Fourteenth Amendment. .0oo.o.o......ceceseseseeeseeees 1]

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TABLE OF AUTHORITIES
CASES:

BMW of North America, Inc. v. Gore,
116 S. Ct. 1595 (1996)

Browning-Ferris v. Kelco Disposal,
EE. ED Si

Byrd v. Blue Ridge Rural Elec.

Cooperative, Inc., 356 U.S. 525 (1958) oe.
Campus Sweater and Sportswear Co. v.

M. B. Kahn Construction, 515 F.Supp. 64

RDA. EP TUD > ciccscsns ihbecanadenmiaeanmaemnes

SOC CH eee eee TEE EEE

Duckett v. Pool, 13 S.E. 542 (S.C. 1891).

Gagne v. Town of Enfield, 734 F.2d 902
EGE. Se catihnencncatenmannbauinnte, stan

Gamble v. Stevenson, 406 S.E.2d 350

I SUED siscsbislegiciccananlaaiamnatacuaeeaamaaacs

Gasperini v. Center for Humanities,
___ US. __, 116 S. Ct. 2211, 135 L. Ed. 2d

SP CED a oissssscncesceissceicandebaneteabuaiananasinas eames

Honda Motor Co. v. Oberg, 512 U.S. 415
(1994)

COPS SESE EEE EE EEE EE EE EEE EE EEE EEEEE SHOES EE EEETEEEEE EE EEEEEEEEEEESEEESEEEEEE EES

SEO CEE SHEET EEE E EES EEEEE SHEE EEEESEHEEE EE EEE

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Johnson v. Hugo's Skateway, 974 F.2d 1408 :

(Cie, I g

Nunez v. Superior Oil Co., 572 F.2d 1119

LO. | EM Th Rn er ee ROME ce Ce 8

Pacific Mut. Life Ins. Co. v. Haslip,

G99 US. 1 CIRC) n:nat 9, 10, 12

Pickens v. South Carolina & G.R. Co.,

32 3.5. 567 GAG. TPR irs ae ee eh 13

Ravan v. Greenville County, 434 S.E.2d 296

(S.C. Agi. 1995) season ee er 15

Smith v. Wade, 461 U.S. 30 (1989) oo ceeseeseeeees * 42

Southwestern Telegraph & Telephone Company

v. Danaher, 238 U.S. 482 (1915) oo cecsssescssseseeeees 12, 13

TXO Productions v. Alliance Resources,

509 US. 443 (EID sii cca ee 12, 13

Tull v. United States, 481 U.S. 412 (1987)... 8,10
CONSTITUTIONAL PROVISIONS:

US. Comat. Ane Fi ee passim

U.S. Const. Amend. XIV, Section 1 ooo passim

STATUTES AND RULES:

28 U.S.C. § EZIELD) .....sinccrseeninidiaseenieininicsintinsameiianeas 2

28 U.S.C. § 1332 2

PPUTTTTTITILIL Ieee eed

Ce I Be eiirsecicceciatinssstscnicinentarinscnstnsincnnas 4
OTHER AUTHORITIES:

Dobbs, The Law of Remedies Damages - Equity -
Restitution § 3.9 (1973) § 3.9 (1973) .. 1. eee eee eee ee eee 9

Restatement 2d Torts § 908 comment b oo eee eee 12

Restatement 2d Torts § 908 comment o.oo... essesecssesesneee 9

Vii

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1997

No.

DIAMANT BOART, INC.,
Petitioner,

V.

JOYCE MARTIN, Individually and as
Personal Representative of the Estate
of Harry O. Martin, deceased,

Respondent.

Petition for a Writ of Certiorari to the United States
Court of Appeals for Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioner, Diamant Boart, Inc., respectfully prays
that a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Fourth Circuit in this
proceeding entered May 30, 1997.

OPINIONS BELOW

The opinion of the Court of Appeals in Martin v.
Diamant Boart America, Inc. (No. 96-1414) is not reported; it
is set forth in the Appendix at 1. The opinion of the United
States District Court for the District of South Carolina (No.
3:92-2982-0) is also not reported; it is set forth in the
Appendix at 10.

JURISDICTION

The jurisdiction of the district court was invoked under
28 U.S.C § 1332 because of diversity of citizenship. On
March 1, 1996, the United States District Court for the District
of South Carolina rendered its final judgment. App. at 9. The
judgment of the United States Court of Appeals for the Fourth
Circuit was entered on May 30, 1997. App. at 1. A timely
petition for rehearing was denied by an order entered on June
24, 1997. App. at 11. This Court's jurisdiction is invoked
under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Constitution, Amendment XIV, Section 1:

All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

ee

U.S. Constitution, Amendment VII:

In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any court of the United States, than according
to the rules of the common law.

STATEMENT OF THE CASE

This lawsuit was brought by Joyce Martin ("Martin"),
individually and as the personal representative of the estate of
her deceased husband, Harry O. Martin (collectively referred
to as "the Martins"), against Diamant Boart America, Inc.’
The suit’s major allegations were: that ground water on the
Martin’ property contained excess levels of
tetrachloroethylene ("PCE") and trichloroethylene rue
that Harry Martin’s death from pancreatic cancer was caused
by exposure to PCE and TCE from the ground water; that
DBA, which owns and operates a plant that manufactures
engineered diamond products such as saw blades and drill bits
near the Martin’s property, was responsible for the PCE and
TCE contamination; and that DBA, thus, caused damage to
the Martin’s property and personal injury to Mr. Martin.

DBA acknowledged that it used an acid bath in some
of its processes, and that although the acid recovery system
was designed as a "closed loop," under actual conditions,
some acid solution was released. DBA employed workers to
neutralize this acid prior to its discharge or re-use, and no acid
or acid by- were found by petitioner or anyone else on
DBA’ property. DBA denied that the acid bath contained
either PCE or TCE; in fact, DBA denied that it used either

‘As noted, Diamant Boart America, Inc., is now known as Diamant
Boart, Inc. However, for the sake of convenience and consistency with the
lower court's opinions, petitioner shall be referred to herein as "DBA."

PCE or TCE in or near its plant. Tests conducted by both state
and federal regulators found no TCE in the soil or
groundwater on DBA’s property; although PCE was detected,
the levels were so minute that they had to be estimated.

The case was tried to a jury in the United States
District Court for the District of South Carolina on claims of
negligence, trespass, and nuisance. The South Carolina
Department of Health and Environmental Compliance, the
state regulatory body responsible for enforcing South
Carolina’s Pollution Control Act ("PCA"), does not believe
and never alleged that DBA was the source of any
contamination found in the Martin’ ground water. Over
DBA’s objection, however, Judge Matthew J. Perry, Jr.,
instructed the jury that under the PCA, it is:

unlawful for any person, directly or indirectly, to
throw, drain, run, allow to seep, or otherwise discharge
into the environment of the state organic or inorganic
matter, including sewage, industrial wastes, and other
wastes, except as in compliance with a permit issued
by the department.

(Citing S.C. Code Ann. § 48-1-90). Judge Perry specifically
emphasized that the PCA makes it unlawful to discharge "any
substance."

Moreover, although Martin neither alleged nor had any
claim under this South Carolina statute, the district court
improperly emphasized the statute by pointedly referring to it
as an important statement of public policy. For example, the
court emphasized that "South Carolina, through the enactment
of this and related statutes, has declared the public policy in
favor of a clean environment [and] a clean water supply . . . ."

The district court also directly instructed the jury to
consider a negligent or other non-reckless violation of the

PCA as evidence supporting a finding of recklessness. In
particular, the district court instructed the jury that any
violation of the terms of a statute such as the PCA can support
the imposition of punitive damages. For example, the district
court instructed:

Now, earlier I told you, when I was talking
about negligence, that the violation of a statute
setting forth a certain duty and standard and

policy consideration is negligence per se . . . .

Now, the violation of a statute does not
in and of itself prove recklessness, willfulness,
or wantonness in and of itself, but is evidence
that the jury may consider in arriving at its
conclusion whether the defendant acted
recklessly, willfully, and wantonly . ...

(Emphasis added).

The district court gave the jury no further guidance
concerning the use of a statutory violation as evidence of
recklessness. In particular, the court did not instruct the jury
that to consider a statutory violation as evidence of reckless
conduct, the jury must also find that DBA appreciated the
danger of injury to the Martins or their property at the time the
statute was violated.

The district court further charged the jury that it had no
discretion to refuse to award punitive damages if it found that
DBA had been reckless (under the court’s flawed instructions).

Rather, the court instructed the jury that if it found that DBA
had been "reckless," including presumably by negligent
violation of the PCA, "it will be your duty to award punitive
damages." (Emphasis added). The district did not, however,
provide the jurors any instruction to assist them in determining
the appropriate amount of such damages.

DBA vigorously objected to all of the court’
instructions concerning the standard for determination of
liability for, and of the amount of, punitive damages.

The jury returned a verdict in favor of DBA on all
personal injury and negligence claims. On the trespass and
nuisance claims, the jury awarded Martin a total of $31,000 in
actual damages for injury to property. The jury also awarded
Martin $1,000,000 in punitive damages. DBA filed a motion
for judgment notwithstanding the verdict or, in the alternative,
for a new trial, and further requested that the court reduce the
excessive punitive damages award. On March 1, 1996, the
district court denied DBA’s motion in its entirety.

On appeal, DBA argued that the district court’
instructions, among other things, violated DBA’s rights under
the Seventh Amendment and under the Due Process Clause of
the Fourteenth Amendment. DBA also sought review and
remittitur of the amount of the punitive damages award. The
United States Court of Appeals forthe Fourth Circuit affirmed
the district court’s decision on the Seventh Amendment and
due process issues, and remanded DBA’ motion for review
and remittitur of the punitive damages award for
reconsideration under the standards set forth in Gasperini v.
Center for Humanities, __ U.S. ___, 116 S. Ct. 2211, 135 L.
Ed. 2d 659 (1996). App. at 7.

The Court of Appeals failed to address the Seventh
Amendment issue. The Fourth Circuit agreed with the district
courts finding that South Carolina "is one of the few
jurisdictions" which removes all discretion from a jury and
requires an award of punitive damages upon a finding of

Because the district court denied DBA’ remittitur motion before this
Court issued its ruling in Gasperini, the district court did not apply South
Carolina law to determine whether the verdict was excessive.

aE

"reckless" conduct. App. at 6 Because the Court of Appeals
concluded any error was harmless, it did not address the
impact this instruction on DBA’s right to a jury trial. App. at
6.

Similarly, the Court of Appeals failed to address the
district court’s erroneous equation of a violation of the PCA
with willful, wanton, or reckless conduct. Nor did the Fourth
Circuit discuss the impact of these instructions on DBA’s due
process rights. App. at 7.

A petition for rehearing was denied by an order entered
June 24, 1997. App. at 11.

REASONS FOR GRANTING THE WRIT

I. The unique South Carolina common law which
usurps the jury’ discretionary authority and
requires it to award punitive damages is a
fundamental attack on rights preserved by the
Seventh Amendment and deprived DBA of its

' right to a trial by jury.

The Fourth Circuit conceded that South Carolina "is
one of the few jurisdictions" that removes all discretion from a
jury and requires an award of punitive damages upon a finding
of "reckless" conduct. App. at 7. (In fact, petitioner is aware
of no state or jurisdiction other than South Carolina that
similarly has removed the decision whether to award punitive
damages from the jury.) The Fourth Circuit failed to directly
address petitioner's argument that the South Carolina rule
violates the Seventh Amendment right to a trial by jury, and its
affirmance of the district court’s judgment is inconsistent with
the terms and requirements of the Seventh Amendment. This
issue presents an important issue of federal constitutional law
that must be settled by this Court.

The Seventh Amendment, a comerstone of the Bill of

Rights, governs proceedings in federal courts and guarantees
the right to a jury trial. Gasperini,__ U.S. ___, 116 S. Ct.
2211, 135 L. Ed. 2d at 668. This Court long has emphasized
that any curtailment of that night should be "scrutinized with
the utmost care." Dimick v. Schiedt, 293 U.S. 474, 486
(1934).

In federal courts, the Seventh Amendment mandates
that federal law governs the allocation of issues between a
judge and jury.’ Gasperini, _ U.S. __, 116 S. Ct. 2211,
135 L. Ed. 2d at 677; Byrd v. Blue Ridge Rural Elec.
Cooperative, Inc., 356 U.S. 525 (1958); Nunez v. Superior Oil
Co., 572 F.2d 1119, 1125 (Sth Cir. 1978). When federal rules
entitle litigants to a jury determination of an issue, a federal
court may not yield to a contrary state practice. Byrd, 356
U.S. at 538; Nunez, 572 F.2d at 1125

To determine the scope of the Seventh Amendment,
this Court has stressed the importance of examining common
law principles governing the role of the jury. See, e.g.,
Dimick, 293 U.S. at 487. Thus, in Tull v. United States, 481
U.S. 412 (1987), the Court recognized that the appropriate
allocation of issues between judge and jury is based upon the
common law. /d. at 417. The Court long has emphasized that,
under the Seventh Amendment, federal courts should be
reluctant to stray from traditional common law standards.
Browning-Ferris v. Kelco Disposal, 492 U.S. 257, 280 n.26
(1989).

There can be no clearer mandate from the common
law than this principle of law: it is the province of the jury to
decide whether to award punitive damages. See

*The allocation between the judge and jury of fact finding responsibility
is a procedural matter. Johnson v. Hugo's Skateway, 974 F.2d 1408, 1416
(4th Cir. 1992). A state court assessing punitive damages may apportion
fact finding responsibility between the judge and jury. Jd. However, when
the same issue is presented in federal court, federal law controls. Jd.

RESTATEMENT 2D TORTS § 908 comment d ("Whether to
award punitive damages and the determination of the amount
are within the sound discretion of the trier of fact, whether
judge or jury."); Gagne v. Town of Enfield, 734 F.2d 902 (2nd
Cir. 1984) ("Whether punitive damages are to be awarded and
in what amount is for the trier of fact . . . ."); DOBBS, THE LAW
OF REMEDIES DAMAGES - EQUITY - RESTITUTION § 3.9 (1973)
("Punitive damages are not given as of right in any state... .
If the plaintiff proves sufficiently serious misconduct on the
defendant's part, the question whether to award punitive
damages is left to the jury which may or may not make such
an award.").*

This Court's prior decisions concerning the role of the
jury under the common law are in accord. See, e.g., Pacific
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 24-25 (1991) (Scalia,
J., concurring) (traditional practice of “American courts [is] to
leave punitive damages . . . to the discretion of the jury."); Day
v. Woodworth, 54 U.S. (13 How.) 363, 370 (1852) (whether to
award punitive damages, and the amount of such damages,
"has always been left to the discretion of the jury"). Indeed, in
Smith v. Wade, 461 U.S. 30 (1989), the Court stated that
punitive damages "are never awarded as a matter of right, no
matter how egregious the defendant's conduct." If the plaintiff
proves sufficiently serious misconduct on the part of the
defendant, the question is then put to the jury whether to
award punitive damages. Jd. at 52.

Not surprisingly, this Court expressly has
acknowledged that, under the Seventh Amendment, the
question of whether to award punitive damages is a legal claim

“As late as 1891, the common law of South Carolina similarly provided
that the jury had the discretion whether to impose punitive damages upon a
finding of recklessness. Duckett v. Pool, 13 S.E. 542 (S.C. 1891 ("where
the testimony satisfies the jury that the defendant acted maliciously,
willfully, or in a wanton disregard of the rights of the plaintiffs, the jury
may . . . {award punitive or exemplary damages].") (emphasis added).

10

that must be decided by the jury. Tull, 481 U.S. at 422 (citing
Curtis v. Loether, 415 U.S. 189, 197 (1974)). Thus, in Tull,
the Court held that it is for the jury to determine liability for
civil penalties. Jd. at 427. In so holding, the Court specifically
stressed that this rule must be followed to "preserve the
substance of the common-law right of trial by jury." Jd. at 426
(citing Colgrove v. Battin, 413 U.S. 149, 157 (1973)).

The present South Carolina law in question, thus,
violates the Seventh Amendment. By requiring the tral court
to direct the jury to award punitive damages if recklessness is
established, the South Carolina rule usurps the traditional
common law and federal rule that such a determination
exclusively is in the province of the jury. In short, the South
Carolina rule represents a gross departure from the common
law and the express holdings of this Court concerning the
standards imposed by the Seventh Amendment.

The Fourth Circuit viewed this breach of the Seventh
Amendment as, at most, a "harmless" instructional error. That
view blatantly eviscerates the requirements of the Seventh
Amendment. It certainly does not comply with this Court’
admonition that any abridgement of the right to a trial by jury
must be "scrutinized with the utmost care." Dimick, 293 U.S.
at 486. Nor is it consistent with this Court’s holdings that if
federal rules entitle a litigant to a jury determination of any
issue, a federal court may not submit to a contrary state
practice. Byrd, 356 U.S. at 538.°

‘The Fourth Circuit suggested that the instruction requiring the jury to
award punitive damages was harmless because "[i]t is difficult to imagine
that setting the minimum amount of damages at zero dollars instead of one
dollar would have affected the final verdict in the slightest." App. at 7.
Even if deprivations of constitutional rights could ever be justified based on
such speculation, the Fourth Circuit's statement ignores several important
factors. First, as Justice OConnor noted in Haslip, 499 US. at 43,
“[mJultimillion dollar losses are inflicted on a whim." (OConnor, J.,
dissenting). Second, because the jury was instructed that it was required to
award punitive damages if it found that DBA had been reckless, the jury
lacked the discretion to chose to award nothing. Under these

1]

Petitioner can point to no conflict in the law of the
various circuits on this issue precisely because no state other
than South Carolina has attempted to deprive citizens of the
right to a jury determination on the issue of whether punitive
damages should be awarded. That fact, however, does not
diminish the importance of the issue to petitioner and every
other defendant in a federal civil trial applying South Carolina
law. Because the Fourth Circuit has demonstrated that it will
not enforce the right of defendants to a jury trial on this issue,
petitioner (and other defendants in the future) must rely on the
supervisory power of this Court to enforce the fundamental
Seventh Amendment right to a trial by jury.

Il. By permitting the jury to consider any statutory
violation, including an innocent or technical
infraction, as evidence supporting an award of
punitive damages, the district court’
instructions offend the minimum culpability
requirements imposed by the Due Process
Clause of the Fourteenth Amendment.

DBA’ rights under the Due Process Clause of the
Fourteenth Amendment were violated by the district court's
instructions to the jury, which virtually compelled the jury to
award punitive damages without the necessary finding of
willful or reckless conduct. Although the district court's
instructions nominally included the direction that punitive
damages should not be imposed absent a finding of
recklessness, the court’s instructions permitted the jury to
equate "reckless" conduct with a violation of the PCA, even if
DBA’ violation of that statue was innocent or merely
negligent. The court then required the jury to award punitive
damages against DBA if it found that DBA was "reckless"

circumstances, the manner in which the duty to award damages impacted
the amount of the award can never be determined.

12

under its flawed definition. Those instructions dramatically
deviated from the procedural and substantive safeguards of the
common law and permitted, if they did not require, the
arbitrary imposition of punitive damages against DBA without
fair or reasonable warning.

This Court has emphasized that "[a] decision to punish
a tortfeasor by means of an exaction of exemplary damages is
an exercise of state power that must comply with the Due
Process Clause of the Fourteenth Amendment." Honda Motor
Co. v. Oberg, 512 U.S. 415, 434-35 (1994). That clause
prohibits the arbitrary, lawless, or biased imposition of civil
penalties or punitive damages. See, e.g., id. at 120; and
Southwestern Telegraph & Telephone Company v. Danaher,
238 U.S. 482 (1915).

Arguably the most fundamental common law
safeguard against an arbitrary, lawless, or biased award of
punitive damages is the requirement that punitive damages
only be awarded for willful, intentional, or reckless conduct;
mere negligent conduct is not sufficient or relevant. See, e.g.,
Woodworth, 54 U.S. (13 How.) at 370 (common law requires
showing of malice, wantonness, or oppression to justify award
of punitive damages); Smith v. Wade, 461 U.S. 30, 59 (1983)
(Rehnquist, C.J., dissenting) (punitive damages are quasi-
criminal in nature); Restatement 2d Torts § 908 comment b
("Punitive damages are not awarded for mere inadvertence,

*In the past several years, this Court has addressed several significant
issues relating to the appropriate constitutional standards for, and
limitations on, the award of punitive damages. See, e.g., Honda Motor Co.
v. Oberg, 512 U.S. 415 (1994) (due process requires judicial review of the
size of punitive damages award); TXO Productions v. Alliance Resources,
509 U.S. 443 (1993)\discussing due process limits on size of punitive
damages awards); Haslip, 499 U.S. 1 (analyzing constitutional status of
punitive damages). It has not, however, squarely addressed the limits
imposed by the Due Process Clause on the requisite conduct necessary to
support an award of punitive damages. This case provides the Court an
important opportunity to decide that issue.

13

mistake, errors of judgment and the like, which constitute
ordinary negligence"); Pickens v. South Carolina & G.R. Co.,
32 S.E. 567, 570 (S.C. 1899) ("Willfulness is the foundation
of a recovery for exemplary damages, and such damages are
not recoverable unless the wrongful act was willful or
intentional.").

As early as the decision in Southwestern Telegraph,
238 U.S. 482, this Court recognized the necessary relationship
between the Due Process Clause and the requirement that
punitive damages or other civil penalties be imposed only
upon a finding of genuinely culpable conduct. In holding that
a civil penalty violated the Due Process Clause, the Court
stated:

[T]he question remains whether, in the circumstances,
penalties aggregating $6,300 could be imposed
without departing from the fundamental principles of
justice embraced in the recognized conception of due
process of law. In our opinion the question must be
answered in the negative. There was no intentional
wrongdoing, no departure from any prescribed or
known standard of action, and no reckless conduct . . .
. In these circumstances to inflict upon the company
penalties aggregating $6,300 was so plainly arbitrary
and oppressive as to be nothing short of a taking of its
property without due process of law.

Id. at 490 (emphasis added).

Similarly, in BMW of North America, Inc. v. Gore, ___

U.S. __, 116 S. Ct. 1589 (1996), the Court reaffirmed that, to

justify the imposition of punitive damages, the Due Process

Clause requires a showing of genuinely reprehensible conduct.

In addressing an award of punitive damages that the Court

held violated the defendant’s substantive due process rights,
the Court stated:

14

Perhaps the most important indicium of the
reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant’s conduct.
As the Court stated nearly 150 years ago, exemplary
damages imposed on a defendant should reflect "the
enormity of his offense... . " (citing Day v.
Woodworth, 13 how. 363, 371 (1852). This principle
reflects the accepted view that some wrongs are more
blameworthy than others.

___ USS. at___, 116 S. Ct. at 1599.

In addition, the Due Process Clause embodies several
procedural safeguards. In determining whether procedural due
process rights have been afforded, this Court consistently has
adhered to the rule that "traditional practice provides a
touchstone for constitutional analysis." Honda Motor, 512
U.S. at 430. Thus, in Honda Motor, the Court held that in the
context of punitive damages the due process analysis should
focus upon a state’s departure from traditional procedures. /d.
at 421 (discussing Pacific Mutual Life Insurance Co. v.
Haslip, 499 U.S. 1 (1991), and TXO Productions v. Alliance
Resources, 509 U.S. 443 (1993)). If the procedure employed
by the trial court deviates from well established common law
procedural safeguards, there is a presumption that the Due
Process Clause has been violated. Honda Motor, 512 U.S. at
430.

One of the fundamental procedural safeguards is the
role played by proper jury instruction. Jd. at 433. Proper
instruction of the jury is necessary to protect against arbitrary,
lawless, or biased punitive damages verdicts. Jd.

The district court’s jury instructions in this case met
neither the substantive nor procedural requirements of the Due
Process Clause. Contrary to the requirements of that clause,
the district court directly instructed the jury that it could use

15

evidence of a violation of the PCA to support a finding of
recklessness, even in the absence of any evidence that DBA’s
violation of that statute was grossly negligent, willful, wanton,
or otherwise genuinely reprehensible. In particular, the district
court charged the jury:

Now, earlier I told you, when I was
talking about negligence, that the violation of a
statute setting forth a certain duty and standard
and policy consideration is negligence per se . .

The court then immediately instructed the jury that any
violation of the terms of a statute, regardless of the defendant's
mental state, can support a finding of reckless conduct:

Now, the violation of a statute does not
in and of itself prove recklessness, willfulness,
or wantonness in and of itself, but is evidence
that the jury may consider in arriving at its
conclusion whether the defendant acted
recklessly, willfully, and wantonly ... .

(Emphasis added). Perhaps most significantly, and contrary to
South Carolina law, the court failed to instruct the jury that a
violation of a statute such as the PCA cannot support a finding
of recklessness unless the jury concluded that DBA
“appreciated the likelihood of harm to the [petitioner] and
acted with indifference to the requirements of the regulation."
Ravan v. Greenville County, 434 S.E.2d 296, 303 (S.C. App.
1993).

These instructions fall far short of the minimum
requirements imposed by the Due Process Clause. Rather than
requiring a jury to find award punitive damages based on
reckless or wanton conduct, as constitutionally required, the
instructions affirmatively invited the jury to find DBA liable
for punitive damages based on a negligent or other non-

16

reckless violation of the PCA. Indeed, because the district
court failed to instruct the jury that a violation of the PCA
cannot equate with reckless conduct and support punitive
damages unless the petitioner also proved that DBA knew that
its conduct posed a substantial danger to the Martins, the
instructions allowed the jury to consider a violation of the
PCA as substantial evidence of recklessness, even if the jury
affirmatively believed that DBA was not indifferent to the
terms of the statute or was not aware that the violation of the
statute posed any danger to the Martins.

It is extremely significant in this regard that the jury’s
verdict that DBA was liable for trespass does not establish that
the jury believed that DBA had acted willfully or wantonly.
As the district court properly instructed the jury, under South
Carolina law, a defendant may be liable for trespass even if it
acted "innocently," so long as it "intended" to perform some
act that resulted in a trespass; there is no requirement that the
defendant know of, appreciate, or intend to commit the
trespass, or even that any injury result.

In short, the district court’s instructions violated DBA’s
due process rights by instructing the jury to consider evidence
of non-reckless conduct to support a finding of recklessness.
Even if the jury was convinced that DBA "innocently" or
"technically" violated the PCA, the jury was instructed to
consider the PCA violation as substantial evidence DBA had
acted recklessly, and, then, if "reckless" conduct (i.e., technical
statutory violation) was present, it was required to award
punitive damages. By so instructing the jury, the district court
fundamentally departed from the requirements of the Due
Process Clause and this Court’s precedents. Accordingly, this
case presents a significant opportunity for the Court to clarify
and firmly establish the constitutional limits imposed by the
Due Process Clause on the minimum conduct necessary to
support an award of punitive damages.

17

CONCLUSION

The South Carolina common law rule that requires the
jury to award punitive damages in all cases in which any
"reckless" conduct is found impermissibly nullifies the jury’s
discretionary authority to decide whether to award punitive
damages. This radical departure from the role traditionally
accorded the jury under the common law violated petitioner’s
Seventh Amendment guarantee of a trial by jury. Moreover,
by instructing the jury to award punitive damages based on
conduct that potentially was neither willful, wanton, or
reckless, the district court’s instructions diluted fundamental
common law safeguards against the arbitrary and lawless
award of punitive damages. This Court’s guidance is, thus,
necessary to clarify and emphasize the minimum conduct
required to support an award of punitive damages consistent
with due process of law. Accordingly, the Court should grant
this petition for certiorari.

Respectfully submitted,

DENNIS W. CROSS
Counsel of Record

MARY L. BARRIER

LEE T. LAURIDSEN
MORRISON & HECKER
2600 Grand Avenue
Kansas City, MO 64108
(816) 691-2600

18

TIMOTHY W. BOUCH
YOUNG, CLEMENT, RIVERS
& TISDALE, LLP
28 Broad Street
Charleston, SC 29402
(803) 720-5488

Counsel for Petitioner

September 3, 1997

APPENDIX

la

APPENDIX
UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 96-1414

JOYCE MARTIN, Individually and as
personal representative of the
Estate of Harry O. Martin, deceased,
Plaintiff-Appellee,

DIAMANT BOART AMERICA, INC.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.

Argued: May 6, 1997 Decided: September 17, 1997

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge,

2a

and TRAXLER, United States District Judge for the District
of South Carolina, sitting by designation.

Affirmed in part and remanded in part by unpublished per
curiam opinion.

ARGUED: Timothy William Bouch, Young, Clement, Rivers
& Tisdale, L.L.P., for Appellant. James Marcus Whitlark,
Fedor, Massey, Whitlark & Ballou, Columbia, South Carolina,
for Appellee. ON BRIEF.- Stephen P. Groves, W. Jefferson
Leath, Stephen L. Brown, Young, Clement, Rivers & Tisdale,
L.L.P., Charleston, South Carolina; Mary L Barrier, Morrison
& Hecker, Kansas City, Missouri, for Appellant David A.
Fedor, Paul C. Ballou, Fedor, Massey, Whitlark & Ballou,
Columbia, South Carolina; James B. Richardson, Jr., Svalina,
Richardson & Larson, Columbia, South Carolina, for

Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
OPINION
PER CURIAM:

Harry and Joyce Martin sued Diamant Boart America
("DBA’) claiming that DBA had illegally dumped hazardous
chemicals, contaminating the Martins’ property. The case was
tried before a jury, which awarded $31,000 in damages for
trespass and $1,000,000 in punitive damages. DBA appeals,
arguing that there was insufficient factual support for the
verdict, that the jury was improperly instructed as to punitive

3a

damages, and that the district court failed to review DBA’
motion for remittitur according to South Carolina law as
required by Gasperini v. Center for Humanities, 116 S. Ct.
2211 (1996). We find that the jury’s verdict was supported by
the evidence. We therefore affirm the district court on the
issue of liability. The punitive damages instructions also
comported with South Carolina law. However, we remand the
issue of remittitur for reconsideration in light of Gasperini.

I.

DBA operates a plant in Richland County, South
Carolina, which manufactures engineered diamond products
such as saw blades, drill bits, and grinding wheels. Hazardous
chemicals used as degreasers are left over from the production
process.

In 1990, Harry and Joyce Martin, who lived around
400 feet from DBA’ property, discovered that their well was
contaminated with trichloroethylene (“TCE”),
tetrachloroethylene ("PCE"), and other hazardous chemicals.
Other wells in the area were also contaminated. The South
Carolina Department of Health and Environmental Control
advised the Martins and others to cease using their wells for
drinking, bathing, or cooking.

In early 1992, Harry Martin was diagnosed as suffering
from pancreatic cancer. Prior to his death in October 1992,
Harry Martin and his wife filed suit against DBA claiming
personal injury and property damage. At trial, DBA denied
using TCE at its plant. Martin countered this contention with
testimony from a salesman who had sold TCE to DBA and
with testimony from ex-DBA employees that DBA had both
used and improperly dumped large amounts of hazardous
chemicals.

DBA responded to this evidence with studies which

4a

concluded that DBA was not the source of the contamination
of the Martins’ property. Indeed, there was conflicting
evidence as to whether TCE was even detected in significant
quantities in the samples taken from DBA’ property and
samples taken from the property between DBA and the
Martins’ property. Martin explained the low level of contami-
nation on DBA’ land with expert testimony that the
contaminants had "migrated" from DBA'’s property over time,
and that the low levels of contaminants resulted from recent
changes in DBA’ waste disposal measures.

Following a three-week trial in September and October
of 1995, the jury found for DBA on all personal injury and
negligence claims, but awarded Joyce Martin $31,000 for
nuisance and trespass and punitive damages of $1,000,000.
The district court denied DBA’s motion for judgment as a
matter of law and DBA’s motion for a new trial or remittitur.

DBA appeals.
i.

As an initial matter, DBA contends that there was
insufficient evidence to support the trespass verdict. It
primarily argues that the testimony of Dr. Jack Parker,
Martin’s expert witness, was shown to have no factual
underpinning and that it should not have been admitted under
Daubert v. Merrell-Dow Pharmaceutical, Inc., 113 S. Ct.
2786 (1993). DBA argues that Dr. Parker’s testimony was
fatally flawed because his theory of how contaminants had
migrated to the Martins’ property from DBA was contradicted
by the evidence. For example, DBA maintains that at most
there were low levels of TCE on its own property and the
property between the DBA plant and the Martins’ property.
Thus, it concludes that the DBA plant could not have been the
source of TCE and PCE contamination.

However, for every contention raised by DBA, Martin

Sa

was able to offer a reasonable explanation or provide evidence
to the contrary. First, Martin proffered evidence which
showed that TCE and PCE were indeed found in DBA’s
groundwater. She further explained the absence of hazardous
chemicals in the samples taken from the intervening property
by noting that those wells were shallow, and that the
chemicals TCE and PCE are "sinkers" which tend to migrate
to the lowest point of the aquifer.

While the facts presented by DBA certainly could have
done much to undermine the weight of Dr. Parker's. testimony,
his basic theory of how chemicals migrated to the Martins’
property was not inadmissible. Indeed, his "mounding" theory
of migration appears to have some acceptance in the field of
hydrogeology. In fact, it was initially developed in the 1950s
by one of DBA’s own expert witnesses. We therefore
conclude that the tnal court did not abuse its discretion by
allowing Dr. Parker's testimony into evidence. United States
v. Dorsey, 45 F.3d 809, 814 (4th Cir. 1995) (decision to admit
or exclude expert testimony under Daubert reviewed for abuse
of discretion). 7

DBA also contends that the testimony of former DBA
employees as to DBA’s dumping of chemical waste should
have been excluded as evidence of past acts under Fed. R.
Evid. 404(b). This contention is meritless. The testimony of
the former employees was not, as DBA alleges, evidence of
past acts designed to show that DBA was "once a polluter,
always a polluter." Rather the testimony was necessary to
establish that DBA had dumped large quantities of the
hazardous chemicals in question and was indeed the source of
the contaminants found on the Martins’ property.

As to DBA’s other arguments regarding the factual
support of the jury’s verdict, suffice it to say that our review of
the record reveals no dearth of evidence to support a verdict
for either party. Both parties were able to present their case to

6a

the jury, and it was for the jury as fact finder to assess the
complex evidence and reach a verdict. While reasonable
minds may have come to a different conclusion than the one
the jury ultimately reached, we cannot say that no reasonable
juror could have returned a verdict for Martin. Brinkly-Obu v.
Hughes Training, Inc., 36 F.3d 336, 351 (4th Cir. 1994).
Therefore, we affirm as to DBA’ liability.

Il.

Next, DBA complains that the jury instruction as to
punitive damages was flawed, and therefore the jury’s verdict
on this issue must be reversed. We disagree. While the
instructions in this case were extensive, the fundamental
prerequisite for punitive damages was properly set forth by the
district court. The court instructed the jury that they should
award punitive damages only if DBA had acted recklessly,
willfully, or wantonly. This comports with the threshold stan-
dard for an award of punitive damages under South Carolina
law. See Wise v. Broadway, 433 S.E.2d 857, 859 (S.C. 1993).

DBA further complains that the instruction was
erroneous because it stated that a finding of a willful, wanton,
and reckless violation required an award of punitive damages
in some amount South Carolina, however, is one of the few
jurisdictions where the instruction is correct. See Sample v.
Gulf Oil Refinery, 191 S.E. 209, 214 (S.C. 1937); see also
Campus Sweater and Sportswear Co. v. M. B. Kahn
Construction, 515 F.Supp. 64, 104 (D.S.C. 1979) (following
Sample). In any event, even if there had been error in this
instruction it was surely harmless. The jury in the case was
free to award punitive damages in an amount far less than one
million dollars. It is difficult to imagine that setting the
minimum amount of damages at zero dollars instead of one
dollar would have affected the final verdict in the slightest.

_

Ta

IV.

Finally, we turn to DBA’s contention that the district
court improperly denied its motion for a new trial or remittitur.
In Gasperini v. Center for Humanities, the Supreme Court
clearly instructed that a district court sitting in diversity must
apply state law standards to determine whether a verdict is
excessive. 116 S. Ct. at2224-25. The district court in this
case denied DBA’s motion before Gasperini was decided, and
consequently did not provide an opinion indicating whether or
how it followed South Carolina law when it made its ruling.
Because of its greater intimacy with the case, the trial court is
in a preferable position to determine the propriety of damages.
Id. at 2225; see also Steinke v. Beach Bungee, Inc., 105 F.3d
192, 198 (4th Cir. 1997). We therefore remand this case so
that the district court may apply the standards set forth in
South Carolina law.

The leading South Carolina case on determining
whether punitive damages are excessive is Gamble v.
Stevenson, 406 S.E.2d 350 (S.C. 1991). In that case, the South
Carolina Supreme Court set out eight factors to consider:

(1) defendant’s degree of culpability; (2) duration
of the conduct; (3) defendants awareness of
concealment; (4) the existence of similar past conduct;
(5) likelihood the award will deter the defendant or
others from like conduct; (6) whether the award is
reasonably related to the harm likely to result from
such conduct; (7) defendant's ability to pay; and finally
(8) ... other factors deemed appropriate.

Id. at 354.
On remand, the district court should apply these

factors and should "look to South Carolina cases to determine
the range of damages in cases analogous to the one at hand."

8a

Steinke, 105 F.3d at 198. A reasoned decision by the district
court following this approach will "reduce the risk of caprice
in large jury awards and will assure a reviewing court that the
trial court exercised its considered discretion wader the
applicable state law." Id.' ?

eS

"We affirm the judgment of the district court as to the
issue of DBA’ liability. We remand the issue of punitive
damages to the district court for consideration of appellants’
motion for remittitur under South Carolina law.

AFFIRMED IN PART, REMANDED IN PART

' In light of the remand on the punitive damages issue. We need not reach
DBA‘ contention that the jury’s verdict exceeded the constitutional
standards set forth in BMW of North America, Inc. v. Gore, 116 S. Ct. 1595
(1996).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

JOYCE MARTIN, INDIVIDUALLY __)

AND AS PERSONAL )

REPRESENTATIVE OF THE ESTATE )

OF HARRY O. MARTIN, DECEASED ) CIVIL ACTION
NO.3:92-2982-0
Plaintiffs,
Vv.

©
6
mH
7m

DIAMANT BOART AMERICA, INC.

Defendant.

This matter is before the Court pursuant to the
defendant’s Motions for judgment as a matter of law or in the
alternative, for a new trial (remittitur or absolute) as to the jury
findings on nuisance and trespass, for a stay in enforcement of
judgment, and for relief from judgment., Also pending before
the Court is the Plaintiffs’ motion for costs and the Defendant's
bill of costs.! These matters were argued before the Court on
January 10, 1996 and taken under advisement.

Accordingly, upon consideration of the arguments of
counsel and the memoranda submitted the Court is of the
opinion that the defendant’s motions should be and are hereby

‘The plaintiff filed a motion for costs with an attached exhibit setting
forth the costs sought. The plaintiff is directed to refer to Local Rule 28.00
(D.S.C.) for the proper method of submitting costs to the Court.

2at the hearing the Plaintiff agreed to submit an agreed upon bill of costs
to the Court.

10a

denied. The revised costs submitted to the Court by the
plaintiff by letter dated February 28, 1996 is hereby approved.”

IT IS SO ORDERED.

MATTHEW J. PERRY
SENIOR UNITED STATES
DISTRICT JUDGE

Columbia, South Carolina,

March 1, 1996.

*The plaintiff is directed to file an amended bill of costs with the Clerk
of Court reflecting the agreed upon costs of $1,085.85.

lla

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 96-1414

JOYCE MARTIN, Individually and as
personal representative of the
Estate of Harry O. Martin, deceased,
Plaintiff-Appellee,

V.

DIAMANT BOART AMERICA, INC.,
Defendant-Appellant.

On Petition for Rehearing
with Suggestion for Rehearing In Banc

The appellant’s petition for rehearing and suggestion
for rehearing in banc were submitted to this Court. As no
member of this Court or the panel requested a poll on the
suggestion for rehearing in banc, and

As the panel considered the petition for rehearing and
is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and
suggestion for rehearing in banc are denied.

For the Court,

CLERK

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1362%3A1. Public record. Not legal advice.