Petition for Writ of Certiorari — Schudel v. General Electric Co.
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. Supreme Cour, 6B. .
Fr.LargPD/
OT 1S86 rts 2518
No. FICE OF THEY CLERK
|
In The
Supreme Court of the United States
October Term, 1997
¢
RUTH HOPKINS AND JOHN KAYWOOD HOPKINS,
husband and wife,
and the marital community composed thereof,
Petitioners,
GENERAL ELECTRIC CO., a foreign corporation;
KAISER ALUMINUM AND
CHEMICAL CORPORATION,
a foreign corporation,
Respondents.
4
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
*
PETITION FOR WRIT OF CERTIORARI
+
THomas C. PHELAN
Counsel of Record
ATTORNEY AT LAW
806 Officers Row
Vancouver, Washington 98661
(360) 750-8750
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Judgment was entered in Petitioners’ favor on July
13, 1994. Respondents filed motions under Fed.R.Civ.P. 50
(b) and 59, but did not effect timely service. Nonetheless,
the trial court granted judgment as a matter of law
(JMOL) in favor of Respondents and ordered a new trial
under Fed.R.Civ.P. 50(b) (Rule 50(b)). On December 1,
1995, Rule 50(b) was amended to provide that post-trial
motions only needed to be filed, not served, within ten
days of a judgment. On appeal, the Ninth Circuit retroac-
tively applied amended Rule 50(b) and held, despite
untimely service of the Rule 50(b) motion, the trial court
had jurisdiction to grant JMOL and order a new trial and
dismissed petitioners’ appeal. Under this scenario, the
questions presented are:
1. May amended Fed.R.Civ.P. 50(b), effective
December 1, 1995, be applied retroactively to a case in
which judgment was entered on July 13, 1994, when to do
so would attach new legal consequences to actions
already completed, deny Petitioners their substantive and
vested rights to judgment that had become final by oper-
ation of law and passage of time, and retroactively vest
the trial court with jurisdiction to grant JMOL and order a
new trial when that jurisdiction would clearly have been
lacking under“pre-amendment Fed.R.Civ.P. 50(b)?
2. In a personal injury action tried under federal
diversity jurisdiction, may a trial court, under
Fed.R.Civ.P. 50(b), grant JMOL in favor of Respondents
on an “issue” (i.e. damages for a certain type of injury)
when Petitioners’ “claim” (negligence) remains provable
in the absence of the such “issue”, when Respondent
il
va wane
QUESTIONS PRESENTED - Continued ;
failed to properly preserve issues in its Rule 50(a) motion
and failed to request specific instructions on such issues?
ee
LIST OF PARTIES
Petitioners are Ruth and John Hopkins, husband and
wife, (hereinafter Hopkins) (Plaintiffs in the District
Court and Appellees in the Court of Appeals). Additional
Plaintiffs below filing separate petitions are Deborah Wil-
liams, David Schudel, Timothy Schudel, Sandra Schudel,
Daniel Glass, Craig Thompson, Kathrene Froese and Mer-
lin Carlson, Jr.
Respondents in this court (Defendants in the District
Court and both Appellee and Appellants in the Court of
Appeals) are General Electric Company and Kaiser Alu-
minum and Chemical Corporation/Kaiser Aluminum
Corporation (hereinafter collectively referred to as
“G.E.”).
LIST PURSUANT TO RULE 29.6
According to its prior corporate disclosure state-
ments, the General Electric Company is a publicly held
corporation with no parent companies. Its subsidiaries
and affiliates are General Electric Capital Corporation;
General Electric Credit International, N.V.; Montgomery
Ward and Company, Inc.; General Electric Preferred Asset
Corporation; CAMCO, Inc. (Canada); General Electric
Capital Services, Inc.; GECC Financial Corporation
(Hawaii); General Electric Capital Canada, Inc.; GNA
Corporation; Mercur Bank (Austria); Imaging Financing
Services, Inc.; and Dart V. Kraft, Leasing Corporation.
iv
LIST PURSUANT TO RULE 29.6 — Continued
Kaiser Aluminum and Chemical Corporation, a
wholiy owned subsidiary of Kaiser Aluminum Corpora-
tion, has equities securities which are publicly held. Kai-
ser Aluminum Corporation’s parent, Maxxam, Inc., has
debt and equity securities which are publicly held, and
affiliates with either publicly held equity or debt securi-
ties Maxxam Group, Inc.; the Pacific Lumber Company;
Scotia Pacific Holding Company; and Sam Huston Race
Park, Ltd.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..........-seceeesceoeees i
oF Me fp) Pere rr rere. ory eee cee iii
LIST PURSUANT TO RULE 29.6.........seseeeees iii
PETITION FOR WRIT OF CERTIORARI............ 1
ey, 3. gf 8S. rere tree e eer eye icr e 1
JURISDICTION «2... 0c ccccccccecescccnccscccvcncnes 2
CONSTITUTIONAL PROVISIONS, STATUTES, AND
COURT RULES INVOLVED. ........-ccececceoeee I
STATEMENT OF FACTS AND PROCEDURAL HiS-
THE aac tic PARRA in Beech eaeee One eae eer ass 4
ARGUMENT FOR GRANTING THE WRIT......... 8
I. The Ninth Circuit’s retroactive application of
Fed.R.Civ.P. 50(b) as amended, effective
December 1, 1995, under the facts of this case,
is in conflict with decisions of this court, nota-
bly Landgraf v. U.S.I. Film Products, 511 U.S.
244, 128 L.Ed.2d 29, 114 S.Ct. 1488 (1994) and
Hughes Aircraft v. United States, ex rel. William J.
Schumer, 520 U.S. __, 138 L.Ed.2d 135, 117
S.Ct. 1871 (1997), is in conflict with another
decision of the Ninth Circuit, Chenault v.
United States Postal Service, 37 F.3d 535 (9th Cir.
1994) and a decision of the Seventh Circuit, Pro
Football Weekly, Inc. v. Gannett Co., Inc., 988
F.2d 723 (7th Civ. 1993). .....cccccccceveccess 8
II. The Ninth Circuit’s retroactive application of
amended Fed.R.Civ.P. 50(b) was in error as this
case was not “pending” on the effective date of
the amended Rule 50(b) and retroactive appli-
cation of amended Rule 50(b) is neither “just”
nor “practicable” ..........-.0seeeeeeeee eens 15
Ill.
I'v.
vi
TABLE OF CONTENTS —- Continued
Page
The Ninth Circuit’s retroactive application of
amended Rule 50(b) violates the judicial doc-
trine favoring finality of judgments..........
Retroactive application of amended Fed.R.Civ.P.
50(b), violates the Fifth and Seventh Amendments
of the U.S. Constitution and the Rules Enabling
Ath, TB Ties Rs BE 0 CA ct een cebatbuesscuse
V. The trial court lacked jurisdiction to grant
JMOL and the Ninth Circuit erred in failing to
ascertain whether the trial court properly acted
ih SPAIN, Fs coi sectaccevenuntstnde ees os
VI. The trial court erred in granting JMOL under
Fed.R.Civ.P. 50(b) as G.E. failed to preserve
issues under Fed.R.Civ.P. 50(a)...............
VII. The trial court lacked jurisdiction to vacate the
judgment and order a new trial.............
ee wh | Pee Terr re
APPENDIX
20
25
27
vii
TABLE OF AUTHORITIES
Cases
Boltes v. Entex, 158 F.R.D. 110 (S.D. Tex. 1994)....... 20
Browder v. Department of Corrections, 434 U.S. 257,
98 S.Ct. 556, 54 L.Ed.2d 521 (1978)...9, 16, 18, 20, 21
Bulgo v. Munoz, 853 F.2d 710 (9th Cir. 1968)....s000- 19
Carlisle v. United States, 517 U.S. 416, 134 L.Ed.2d
613, 116 S.Ct. 1460 (1996). ..... 6. eee eeeee 18, 21, 22
Chenault v. United States Postal Service, 37 F.3d 535
(9th Cir. 1994)........ccceeeeeees & 12; BB, ‘37, 16 19
Chicot County Drainage Dist. v. Baxter State Bank,
308 U.S. 371, 84 L.Ed.2d 329, 60 S.Ct. 317 (1940) .... 21
Cone v. West Virginia Pulp and Paper Co., 330 U.S.
212, 91 L.Ed. 849, 67 S.Ct. 752 (1946) .....-.-.+++-. 9
Davis v. Valley Distrib. Co., 522 F.2d 827 (9th Cir.
1975), cert. den’d, 429 U.S. 1090, 97 S.Ct. 1099, 51
L.Ed.2d 535 (1977). .... ccc ccccccreeeeeeeeeeeeenees i9
Eastman Kodak Company v. Southern Photo Materials
Company, 273 U.S. 359, 71 L.Ed. 684, 47 S.Ct. 400
(1DB7) cccrvcovcnscccvcrccseccccesccccccveccscscocs 29
Georgia Association of Retarded Citizens v. McDaniel,
855 F.2d 805 (11th Cir. 1988), cert. den’d, 490 U.S.
1090, 109 S.Ct. 24, 104 L.Ed.2d 988 (1989)......... 23
Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 67
L.Ed. 819 (1923)... ....cccccccccccvvcccvevvecseees 24
Hughes Aircraft v. United States ex rel. William J.
Schumer, 520 U.S. __, 138 L.Ed.2d 135, 117 S.Ct.
1871 (1997)... .cccccccccccccccccccccrccesesces passim
viii
TABLE OF AUTHORITIES — Continued
Page
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,
115 L.Ed.2d 481, 111 S.Ct. 2439, reh. den., __
(US) __, 130 L.Ed.2d 1131, 115 S.Ct. 1179 (1991) .... 21
Johnson v. New York, New Haven and Hartford R.R.
Co., 344 U.S. 48, 97 L.Ed. 77, 73 S.Ct. 125 (1952) ..... 9
Kern v. Levelor Lorentzen, Inc., 899 F.2d 772 (9th Cir.
rrr rT reer re ro rrr ry eer herr ry 29
Landgraf v. U.S.I. Film Products, 511 U.S. 244, 128
L.Ed.2d 229, 114 S.Ct. 1483 (1994) ............ passim
Lifshitz v. Walter Drake and Sons, Inc., 806 F.2d 1426
a | ree fer res Tyee er eer 27
Magnuson v. Video Yesteryear, 85 F.3d 1424 (9th Cir.
| SPS tey rns Dive renee Fr taey et nie Ie eee 2 |
McCord v. Maquire, 873 F.2d 1271, amended, 885
oe gf. ¢e errr rrr rt Terere 29
Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993)... . 26 |
Murphy v. City of Long Beach, 914 F.2d 183 (9th Cir.
eT eee re re rr re 27
Pennsylvania v. Wheeling and Belmont Bridge Com-
pany, 59 U.S. 421, (18 How.), 15 L.Ed. 435 (1852) .... 24
Pro Football Weekly, Inc. v. Gannett Co., Inc., 988 |
R2dg 725 (7th Cie. 1993)... ..ccccccccees -ocee, Aa, 14 |
Schroeder v. McDonald, 55 F.3d 454 (9th Cir. 1995) .... 10
Schudel et al. v. General Electric, Co., 120 F.3d 991
Cee Ge FONT 06 cee sessavinsdecacwexaadis duns passim
Thompson v. Immigration and Naturalization Service, |
375 U.S. 384, 11 L.Ed.2d 404, 84 S.Ct. 397 (1964) ..... 9 |
eo
ix
TABLE OF AUTHORITIES - Continued
Page
United States v. 51 Pieces of Real Property in Roswell,
NM, 17 F.3d 1306 (10th Cir. 1994).....-...eeeeeees 20
United States v. Locke, 471 U.S. 84, 85 L.Ed.2d 64,
105 S.Ct. 1785 (1985) ......c cece reece ee ereeeeecees 22
Venagas v. Wagner, 831 F.2d 1514 (9th Cir. 1977)..... 26
Wallis v. ].R. Simplot Co., 26 F.3d 885 (9th Cir. 1994) .... 10
Wheeler v. Catholic Archdiocese of Seattle, 124 Wn.2d
634, 880 P.2d 29 (Wn. 1994). .... cece eee eee eee eens 29
STATUTES, RULES AND CONSTITUTIONAL PROVISIONS
9B US.C. Sec. 12541)... ccc cece cree ceeececeeeveeeees 3
PA U.S.C. Sec. 1Z91 ..ccccccccccccvevvevssesvesesccuss A
28 U.S.C. Sec. 1332(a)(i).... cee eee cree eee e ere e ee eeeees 2
9B U.S.C. Sec. 2072 ...cccsccccccceccvcvccvvess 4, 23, 25
98 U.S.C. Sec. 2072(b)...... cece ce cree cence eeeeeeees 24
Fed.R.App.P. 4.......cceerececrerceecnceeeecncees 10, 16
Fed.R.App.P. 4(a)(1)...... 00sec eee rere rete eee eeeeeees 16
MOND Be ices ccccvsecvcasveccevscscensvecves 24
Fed. R.Civ.P. 4(a)(1)... 2. cece cece cence eeeeeeeeeeeees 16
ES Pree errr ett rrr er 6
Fed .R.Civ.P. 49(a) .... cece cc ccc reeseecececceeeeeceees 28
Fed.R.Civ.P. 50........eeceecceeveees 2, 9, 13, 14, 20, 21
Fed. R.Civ.P. 50(a) ...... cece cece cence eeeeeeees 4, 27, 28
Fed.R.Civ.P. 50(b) (1991 version and 1995
amended version) ......---+ssseeeeeeeeeeeeees passim
TABLE OF AUTHORITIES - Continued
Page
Sg PT Tee ee eT eT TC TeT ETT Cr ee 28
cere th edkeweaackie sedis eb aken 6
Fed.R.Civ.P. 59 (1991 and 1995 amended versions) . . passim
PER IE 504 Sabon ecb duck ckeeebencens 21, 22
Supreme Court Order Amendments to the
PU ee. CAME, 275 BORED oo os ccc ves ccks: 4, 10, 15
ee ee a eee 7
I Ge UND BIS ns ceca ieee Tin ccdcesscans 3
Ie NE, DIRE Bs ok 6s cvic kn ienacensceancee 3
Fifth Amendment, U.S. Constitution........... 3, 2a, ao
Seventh Amendment, U.S. Constitution............ 4, 23
PETITION FOR WRIT OF CERTIORARI
John and Ruth Hopkins, husband and wife, plaintiffs
below and Petitioners herein (hereinafter Hopkins),
respectfully pray that a Writ of Certiorari issue to review
the judgment and opinion of the United States Court of
Appeals, Ninth Circuit, entered on July 23, 1997, and
affirmed by order filed November 24, 1997, denying Hop-
kins’ petition for rehearing and suggestion for rehearing
en banc. Petitioners submit that the Ninth Circuit’s rul-
ings below are appropriate for this Court’s consideration
for the reasons that the Ninth Circuit’s decision has
decided on important federal question that has not, but
should be, decided by this Court, namely the retroactivity
of an amended Federal Rule of Civil Procedure (Rule
50(b)). In so deciding, the Ninth Circuit’s decision is in
conflict with prior decisions of this Court, prior decisions
of the Seventh Circuit, as well as prior decisions within
its own circuit. The Ninth Circuit’s decision also repre-
sents a departure from the usual and accepted course of
judicial proceedings, or sanctions the trial court’s depar-
ture from usual and accepted proceedings in such a man-
ner as to warrant the exercise of this court’s supervisory
power.
¢
OPINIONS BELOW
The judgments rendered at the trial court level and
rulings by the trial court which give rise to the appeal to
the Ninth Circuit are set forth at App. D (judgment of
July 13, 1994); App. C (as applied to Petitioners Hopkins,
pertinent portions of trial court ruling of November 25,
1994; App. F (trial court order of January 17, 1995) and
App. E (Amended Judgment of November 25, 1994). The
opinion of the United States Court of Appeals, Ninth
Circuit, that gives rise to this petition is Schudel et al. v.
General Electric Co., 120 F.3d 99 (9th Cir. 1997). App. A. By
order filed November 24, 1997, the Ninth Circuit denied
Hopkins’ petition for rehearing and suggestion for
rehearing en banc. App. B.
JURISDICTION
This action was commenced on September 30, 1991 in
the Spokane County, Washington Superior Court and
thereafter removed by Defendants General Electric and
Kaiser Aluminum (hereinafter collectively referred to as
G.E.) to the Federal District Court, Eastern District of
Washington based upon diversity of citizenship under 28
U.S.C. Sec. 1332(a)(i). Following a 54 day jury trial, judg-
ment was entered on July 13, 1994 in favor of Hopkins
and others. App. D. G.E. filed its motion for judgment as
a matter of law pursuant to Fed.R.Civ.P. 50(b) (hereinafter
Rule 50) and alternative motion for a new trial under
Fed.R.Civ.P. 59 (hereinafter Rule 59) on July 27, 1994.}
1 The record does not reflect that Hopkins and others were
ever served with the post-trial motions as required by the rules.
At trial and on appeal, Hopkins claimed ineffective service of
these motions deprived the trial court of jurisdiction to rule on
G.E.’s post trial motions. The Ninth Circuit concluded that the
attempt to serve Hopkins by delivering the motions to a private
delivery service was ineffective and therefore untimely, citing to
Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9th Cir. 1996).
G.E. did not file a notice of appeal challenging the July
13, 1994 judgment.
On November 25, 1994, the trial court, without oral
argument, granted judgment as a matter of law (hereinaf-
ter JMOL) in favor of G.E. and ordered a new trial under
Rule 50(b) despite arguments by Hopkins and others that
it lacked jurisdiction to rule on said motions. The trial
court denied G.E.’s Rule 59 motions in their entirety. App.
E and F.
Hopkins appealed to the Ninth Circuit Court of
Appeals under 28 U.S.C. Sec. 1291. The Ninth Circuit
issued its opinion on July 23, 1997. Schudel et al. v. General
Electric Co., 120 F.3d 991 (9th Cir. 1997). App. A (hereinaf-
ter Shudel). Thereafter, on November 24, 1997, the Ninth
Circuit denied Hopkins timely filed motion for rehearing
and suggestion for rehearing en banc. App. B.
Pursuant to Supreme Court Rule 13.1 and 13.3, this
petition for certiorari has been filed within 90 days of the
denial of rehearing. This Court has jurisdiction pursuant
to 28 U.S.C. Sec. 1254(1).
*
CONSTITUTIONAL PROVISIONS, STATUTES,
AND COURT RULES INVOLVED
Due to the lengthy nature of the material, the full text
of the following Constitutional provisions, statutes and
court rules are set forth in App. G:
The Fifth Amendment to the United States Constitu-
tion
The Seventh Amendment to the United States Consti-
tution
28 U.S.C. Sec. 2072
Fed.R.Civ.P. 50(a) (1994 version.)
Fed.R.Civ.P. 50(b) (1993 and 1995 amended versions.)
Fed.R.Civ.P. 59 (1966 and 1995 amended versions.)
Supreme Court Order dated April 27, 1995 adopting
amended Fed.R.Civ.P. 50 and 59.
¢
STATEMENT OF FACTS AND
A PROCEDURAL HISTORY
Plaintiffs John and Ruth Hopkins, husband and wife,
employees of Qualified Personnel, Inc. (QPI), worked at
the Kaiser Aluminum plant in Spokane, Washington in
the fall of 1988. Kaiser Aluminum contracted with G.E. to
clean up a PCB-contaminated room at its Spokane plant
and G.E. in turn contracted with QPI to provide person-
nel, including the Hopkins, to work at the clean-up. Sev-
eral toxic chemicals and detergents were used in the
clean-up. In brief, the harmful effects of these agents
were well known to G.E. and the proof at trial established
that G.E. failed to take appropriate steps to protect the
Hopkins from harmful levels of exposure to these agents.
The Hopkins suffered severe and permanent injuries as a
result and thereafter commenced a cause of action based
in negligence and loss of consortium for injuries each
received as well as for injury to their respective spouse.
5
Each Hopkins was exposed to chemicals and deter-
gents in sufficient amounts to have produced a perma-
nent respiratory ailment diagnosed as Reactive Airways
Dysfunction Syndrome or Reactive Airways Disease Syn-
drome (RADS).? Mrs. Hopkins became so ill she was
hospitalized for three days. Secondary to RADS, Mrs.
Hopkins suffered from a severe, permanent depression,
which required medication and extensive psychotherapy.
Mrs. Hopkins, due to her depression and RADS, was
unemployable. The evidence further showed Mrs. Hop-
kins had memory and concentration problems as a result
of her depression. Both Hopkins will be predisposed to
future respiratory infections as a result of RADS and Mr.
Hopkins must work in an irritant free environment, thus
limiting future employment prospects.
Unchallenged trial testimony showed that the Hop-
kins’ lifestyles were severely impaired and their injuries
restricted their ability to enjoy the lifestyle they once
enjoyed as individuals and as a married couple.
G.E. contended that the exposure, if any, was insuffi-
cient to have caused injury, and that the Hopkins’ smok-
ing history caused their respiratory ailments.
After 54 days in trial, the case went to the jury on
special verdict forms as to each Plaintiff. Neither party
2 RADS is a condition wherein exposure to non-specific
odors subjects a person to sever asthma-like attacks. RADS
requires daily medication. An attack is severely debilitating and
its effects can last for weeks.
3 Mrs. Hopkins claimed damages due to respiratory
injuries and depression and Mr. Hopkins claimed respiratory
sought to have the jury instructed to award damages on
the basis of each individual injury. The jury returned a
verdict in favor of John Hopkins of $1,348,020.00 for
compensatory damages, and $602,250.00 for his loss of
consortium and a verdict for Ruth Hopkins of
$1,404,040.00 as compensatory damages and $602,250.00
for her loss of consortium. Judgment from the verdict was
entered on July 13, 1994. App. D.
G.E. filed its Fed.R.Civ.P. 50(b) and alternative
motion for a new trial under Fed.R.Civ.P. 59 on July 27,
1994.4 On November 25, 1994, the trial court, without oral
argument, denied Hopkins’ and others motions regarding
untimely service and granted judgment in favor of G.E.5
The trial court denied G.E.’s motion for a new trial under
Fed.R.Civ.P. 59 in its entirety and certified this case for
appeal pursuant to Fed.R.Civ.P. 54(b).
Hopkins appealed to the Ninth Circuit, alleging the
trial court lacked jurisdiction to grant judgment as a
injuries. Each claimed, and the jury was specially instructed on
the issue of loss of consortium as to each spouse. Each testified
as to the tremendous loss of companionship and intimacy they
suffered as a result of the respiratory injury to the other.
* July 27, 1994 was the 10th judicial day following entry of
the judgment and thus the last day to file and effect service
under then existing Fed.R.Civ.P. 50(b) and 59. See Fed.R.Civ.P. 6.
> While acknowledging the evidence sustained respiratory
injury caused by G.E.’s negligence, and resulting loss of
consortium, the trial court ruled that both Hopkins made a
“claim” for brain damage which was not proven. Hopkins
disputes this finding. Thus, the trial court felt the unproven
“claim” for brain damage “tainted” the jury verdict and ordered
a new trial. See App. C.
matter of law (hereinafter JMOL) and a new trial under
Rule 50(b).
The Ninth Circuit dismissed the Hopkins appeal, rea-
soning that it lacked jurisdiction to consider an appeal as
the negligence claims were not “final” and the new trial
order was interlocutory in nature. App. A. The Ninth
Circuit, by order dated November 24, 1997, denied Hop-
kins’ timely filed petition for rehearing. App. B.
For reasons that follow hereafter, the Ninth Circuit's
decision dismissing the appeal, affirming the trial court’s
grant of JMOL and order for a new trial should be
reversed and plaintiff Hopkins’ verdicts reinstated,
together with interest from July 13, 1994 until paid.®
¢
6 Hopkins adopts, to the extent applicable, each and every
argument of Plaintiffs/Petitioners listed in the Parties section,
supra, insofar as the questions-or issues presented, arguments
made, or authorities being advanced by said parties in their
Petitions for Certiorari being separately filed herein, may relate
to issues in common. See Rules of U.S. Supreme Court, Rule
12(4).
ARGUMENT FOR GRANTING THE WRIT
I.
The Ninth Circuit’s retroactive application of
Fed.R.Civ.P. 50(b) as amended, effective December 1,
1995, under the facts of this case, is in conflict with
decisions of this court, notably Landgraf v. U.S.I. Film
Products, 511 U.S. 244, 128 L.Ed.2d 29, 114 S.Ct. 1488
(1994) and Hughes Aircraft v. United States, ex rel. Wil-
liam J. Schumer, 520 U.S. __, 138 L.Ed.2d 135, 117 S.Ct.
1871 (1997), is in conflict with another decision of the
Ninth Circuit, Chenault v. United States Postal Service,
37 F.3d 535 (9th Cir. 1994) and a decision of the Seventh
Circuit, Pro Football Weekly, Inc. v. Gannett Co., Inc.,
988 F.2d 723 (7th Cir. 1993).
The above cases hold that absent an express declara-
tion to the contrary, amended statutes may not be applied
retroactively in such a manner as to change the legal
effect of conduct at the time it took place, especially when
to do so is prejudicial to one of the parties or operates to
deprive a party of a vested right. To prevent an unjust
result in this case and to further assist courts in the future
on issue of retroactivity of amended civil rules, as well as
bring uniformity among circuits and this Court’s deci-
sions on the subject, this court should grant this petition.
Furthermore, the Ninth Circuit’s decision in this case
has decided an important question of federal law that has
not been, but should be, decided by this Court, namely
the retroactivity of an amended Federal Rule of Civil
Procedure to a case that has been completed and in which
judgment, under previous civil rules and case law became
final.
9
The Ninth Circuit correctly ruled that G.E.’s post-trial
motions were served in an untimely manner. 120 F.3d at
944. While this case was on appeal by Hopkins and others
to the Ninth Circuit, challenging the trial court’s author-
ity to rule on untimely post-trial motions, Rule 50(b) and
Rule 59 were amended, effective December 1, 1995, to
provide that post-trial motions are timely if filed within
10 days of judgment.” Under the version of Rule 50(b) in
effect at the time that this case was concluded and judg- _
ment entered, it was settled law that failure to serve and
file post-trial motions on or before the 10th day following
judgment deprived the trial court of jurisdiction rule on
the motions. Cone v. West Virginia Pulp and Paper Co., 330
U.S. 212, 217, 91 L.Ed. 849, 67 S.Ct. 752 (1946).®
Despite finding service of G.E.’s post-trial motions
untimely under the pre-1995 version of Rule 50(b), and in
apparent disregard for the above authority, the Ninth
Circuit retroactively applied the amended 1995 version of
Rule 50(b) to this case, noting at 120 F.3d 994:
7 The full text of Fed.R.Civ.P. Rule 50(b) and 59, prior to and
after the 1995 amendments, is set forth in App. G.
8 See also Johnson v. New York, New Haven and Hartford R.R.
Co., 344 U.S. 48, 97 L.Ed. 77, 73 S.Ct. 125 (1952) (Requirement of
a timely application for judgment under Rule 50 is firmly
grounded in principles of fairness); Browder v. Department of
Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521
(1978); Thompson v. Immigration and Naturalization Service,
(Clark, J. Dissenting), 375 U.S. 384, 11 L.Ed.2d 404, 407, 84 S.Ct.
397 (1964) (Post trial motions not timely served do not toll
appellate deadlines.)
10
This proceeding was pending on December 1,
1995, and no prejudice will result from applica-
tion of the amendments. . . . We have applied
amended federal rules of appellate procedure
retroactively in similar circumstances, See Schro-
eder v. McDonald, 55 F.3d 454, 459-60 (9th Cir.
1995); Wallis v. ].R. Simplot Co., 26 F.3d 885, 888
(9th Cir. 1994); and do so here.?
This holding conflicts with the notion deeply rooted
in American jurisprudence that absent an express decla-
ration that a statute or rule is to be applied retroactively,
there is a strong presumption against its retroactive appli-
cation. Hughes Aircraft, supra at 138 L.Ed.2d 146. In
amended Rule 50(b), there is no clear expression of retro-
activity. Rather, its provisions apply to cases filed after
December 1, 1995 and to “pending” cases only “insofar as
just and practicable.” S.Ct. Order, Amendments to the
Fed.R.Civ.P. (Apr. 27, 1995).
As noted in Landgraf, (Scalia, J. concurring) at
269:
. a procedural change should no more be
presumed to be retroactive than a substantive
one... Absent clear statement otherwise, only
such relevant activity which occurs after the
effective date of the statute is covered.
(emphasis original)
* The flawed logic in this analysis is that but for the trial
court exceeding its jurisdiction by ruling, contrary to existing
case law, that it had jurisdiction to rule on the post-trial motions,
this case would have not been “pending” on December 1, 1995,
as there would be nothing to appeal. G.E. never filed a notice of
appeal under Fed.R.App.P. 4 and Hopkins would not contest the
verdict in their favor.
11
The Schudel court erred, much like the Ninth Circuit
did in the Hughes Aircraft, supra case. This Court, in
reversing the Ninth Circuit in the Hughes case, held that
defining a statute as “jurisdictional” and thus “an excep-
tion to the general Landgraf presumption against retroac-
tivity” is erroneous “for the only “presumption”
mentioned in that opinion is a general presumption
against retroactivity.” Hughes Aircraft, supra at 138 L.Ed.2d
146.10
In this case, the Ninth Circuit’s classification of the
amendments to Rule 50(b) as merely jurisdictional or
procedural disregards the holding of Landgraf, supra.
Landgraf at 128 L.Ed.2d at 258-59 n.29, held that classify-
ing a statute as “procedural” and thus automatically ret-
roactive, is error, noting:
Of course, the mere fact that a new rule is pro-
cedural does not mean that it applies to every
pending case... . Our orders approving amend-
ments to federal procedure rules reflect the com-
mon-sense notion that the applicability of such
provisions ordinarily depends on the posture of a
particular case . . . we do not restrict the pre-
sumption against retroactivity to those cases
involving “vested rights” ... Nor do we suggest
that concerns about retroactivity have no appli-
cation to procedural rules. (emphasis added)
In this case, amended Rule 50(b) operates much like
the statute in question in Hughes. In both cases, the
10 Rule 50(b), while designated a procedural rule, takes on
the aspects of a “jurisdictional” rule affecting vested and
substantive rights of the parties, particularly when the trial
court lacks jurisdiction based on an untimely post-trial motion.
12
amendments not only allocate “jurisdiction” among
courts, but “create” jurisdiction where none previously
existed. If a rule or statute, as amended, creates:
. . . jurisdiction where none previously existed,
it thus speaks not just to the power of a particu-
lar court but to the substantive rights of the
parties as well. Such a statute, even though
phrased in “jurisdictional” terms, is as much
subject to a presumption against retroactivity as
any other.
Hughes Aircraft, supra at 146.
A statute has retroactive effect if, when applied, “the
new provision attaches new legal consequences to events
completed before its enactment.” Landgraf, supra at 255. In
this case, application of the “new provision” (filing only
vs. filing and service) attaches new legal consequences of
a severely prejudicial nature. Under pre-amended Rule
S0(b), the trial court lost jurisdiction to rule as the
motions were not timely filed and served. Retroactive
application of the “new provision” (1995 version of Rule
50(b)) gave to the trial court jurisdiction to grant G.E.’s
motions where none existed pre-amendment. The end
result is that the Hopkins lost their judgments which had
become final by passage of time. Thus, the “new legal
consequences” are most severe.
The Ninth Circuit’s opinion in this case is also seem-
ingly at odds with its own decision in Chenault v. United
States Postal Service, 37 F.3d 535, 539 (9th Cir. 1994),
wherein the Chenault court noted:
Regardless of whether a statute is “substantive”
or “procedural”, it may not apply to cases pend-
ing at the time of enactment if the new statute
13
would prejudice the rights of one of the par-
ties. ...
By applying the 1995 version of Rule 50(b) to this case,
the Schudel court gave the trial court jurisdiction it had
lost, thus allowing its JMOL and new trial order to stand.
As a result, the Hopkins and others must bear the
expense, uncertainty, and time involved in appeals and
retrials. For this reason, and the fact that the Hopkins lost
their right to judgment, Hopkins submits that the above
language of Chenault has been violated. These factors
clearly show that the Hopkins have been prejudiced by
the Schudel court’s application of amended Rule 50(b). In
this respect, “[e]lementary considerations of fairness”
and the “settled expectations” of the Hopkins were not
just “lightly disrupted”, they were completely trampled.
Landgraf at 252.
Granting the petition in this case is also necessary
due to an apparent conflict between the Ninth Circuit's
opinion in this case and the Seventh Circuit’s decision in
Pro Football Weekly, Inc. v. Gannett Co., Inc., 988 F.2d 723
(7th Cir. 1993). In the Gannett case, the trial court applied
Rule 50(b) as it was in effect on November 18, 1991 and
granted a directed verdict in favor of Gannett on certain
issues tried to a jury. Thereafter, Rule 50 was amended,
effective December 1, 1991. On review, the Seventh Cir-
cuit held at 725:
Federal Rule of Civil Procedure 50 governs the
process by which a directed verdict and a judg-
ment notwithstanding the verdict (j.n.o.v.) may
be obtained. This rule was amended on Decem-
ber 1, 1991; proceedings below were concluded
prior to the rule’s amendment and therefore we
ee
14
are guided by the prior version of Rule 50,
(emphasis added).
A like result is compelled here. In this case, the trial
court proceedings were concluded 1'/2 years prior to the
effective date of the 1995 version of Rule 50(b). In this
case, as in the Gannett case, the fact that the matter was
on appeal at the time the amended rule was effective did
not mean the case was “pending” and therefore subject to
a retroactive use of the amended version of Rule 50. The
Gannett reasoning is consistent with the general presump-
tion against retroactivity articulated in Landgraf and
Hughes, whereas the Ninth Circuit’s opinion in this case
conflicts with that presumption.
Intervention by this court is necessary to harmonize
inconsistent decisions among circuits regarding the retro-
active application of an amended rule of civil procedure.
Further, Petitioner’s research disclosed no case in which
this court has directly decided the retroactive nature of
amended rules of civil procedure. As the decision by the
Ninth Circuit in this case conflicts with the decisions of
this court in the area of retroactivity, especially in such a
way as to depart from the usual and accepted course of
judicial procedure, this court should grant the petition to
clarify the applicable law in this area.
15
II.
The Ninth Circuit's retroactive application of amended
Fed.R.Civ.P. 50(b), effective December 1, 1995, was error
in that this case was not “pending” on the effective date
of the amendment, nor would it be “just and practica-
ble” to apply the amended rule to the facts of this case.
The Ninth Circuit’s retroactive application of
amended Fed.R.Civ.P. 50(b), effective December 1, 1995,
to the facts of this case, was in error as this case was not
“pending” on the effective date of the amendment, nor is
such application “just and practicable” as required by this
Court’s order, dated April 27, 1995 at 131 L.Ed.2d xcii,
adopting the amended rules. In this respect, the Ninth
Circuit has addressed an important federal question,
which has not, but should be addressed by this court.
Specifically, this court should determine whether a case
was “pending” and what circumstances fall within the
“just and practicable” language above in deciding the
extent that the amended Rule 50(b) may be applied retro-
actively. In addition, the Ninth Circuit has further
departed from the usual and accepted course of judicial
proceedings in such a manner as to warrant the exercise
of this Court’s supervisory power.
A.
This case was not “pending” on the effective date of the
amended Rule 50(b), December 1, 1995.
Amended Rule 50(b) may apply to cases that are
“pending” on the effective date of the amendments if to
do so would be “just and practicable”. S.Ct. Order,
Amendments to Fed.R.Civ.P. (Apr. 27, 1995). In this case,
Hopkins and others contended that untimely service of
16
post-trial motions under Rules 50(b) and 59 deprived the
trial court of jurisdiction to address said motions. Had
the trial court properly ruled on November 25, 1994, as
was ultimately determined by the Ninth Circuit, that the
post-trial motions were not timely served, it would have
been, by law, without jurisdiction to rule on the pending
motions. Browder v. Department of Corrections, supra."
Judgment was entered in Plaintiff’s favor on July 13,
1994. Timely filing and service of post-trial motions were
required, under then existing versions of Rule 50(b) and
Rule 59, no later than July 27, 1994. Only the timely filing
and service of these motions would toll the time for G.E.
to appeal from this judgment. Under Fed.R.App.P. 4(a)(1),
G.E. had 30 days to file a notice of appeal from judgment,
or until August 12, 1994. G.E. never filed a notice of
appeal from this judgment at any time. As such, this
judgment became irrevocably final on August 13, 1994.12
This case was not “pending” for purposes of applica-
tion of amended Rule 50(b), as Hopkins and others were
'! In this respect, Hopkins’ right to judgment was lost when
the trial court improperly exercised jurisdiction predicated on
untimely served motions. Hopkins’ only redress was to file an
appeal. Instead of securing relief, the Ninth Circuit ruled that in
appealing, Hopkins caused the case to be “pending” on
December 1, 1995. As if this were not enough, this injustice was
taken full circle by the Ninth Circuit’s retroactive grant of
“jurisdiction” to the trial court by applying amended Rule 50(b).
'2 Fed.R.App.P. 4 was amended in 1993 to provide that
premature notices of appeal would be held in abeyance pending
post-trial rulings by the trial court. Even with this option, G.E.
gambled that it had tolled the appeal deadlines with its post-
trial motions, and elected not to appeal the July 13, 1994
judgment. As such, this judgment was final on August 13, 1994.
17
forced to appeal to contest the power of the District Court
to enter judgment in the first instance, notwithstanding
untimely served post-trial motions.'> To hold that this
case is “pending” by the existence of an appeal, under the
facts of this case, negates the principle that the law in
effect at the time of the conduct should govern absent
clear expression to the contrary. Landgraf, supra.
B.
Retroactive application of Rule 50(b) as amended is
neither “just” nor “practicable”.
Statutes are not to be applied retroactively if such an
application will prejudice one of the parties. Chenault,
supra. In addition, if retroactive application of a law will
affect the “substantive” or “vested” rights of a party, even
if it is deemed procedural in nature, retroactivity is not
favored. Landgraf, supra. By restoring jurisdiction to the
trial court, while simultaneously rewarding G.E. for non-
compliance with the service deadline in then Rule 50(b),
the Ninth Circuit has made the prejudicial and unjust
nature of the retroactivity in this case obvious. The end
result is that Hopkins and others lost their vested rights
to a judgment which, based on the lapse of time to file an
appeal (30 days), became final. It would be difficult to
13 The Ninth Circuit’s determination that this case was
“pending” is only made possible by the fact that Hopkins and
others were forced to appeal the trial court’s lack of jurisdiction.
It seems anomalous that Hopkins had to contest, by way of
appeal, the trial court’s lack of jurisdiction and this very fact
becomes the reason the case is “pending” and subject to
retroactive application of a rule, resulting in the trial court
regaining jurisdiction it previously lost under the pre-1995 rule.
18
imagine a more unfair result, particularly when the
Schudel court ruled the case was “pending” because Hop-
kins appealed the lack of the trial court's jurisdiction in
the first place.
The Ninth Circuit did little or no analysis as to
whether it was “just and practicable” under the “posture
of the particular case”, Landgraf, supra, to retroactively
apply amended Rule 50(b) to this case.14 Clearly, plain-
tiffs have been prejudiced in that their vested and sub-
stantive right to a judgment, which had theretofore
become final, was lost by application of a rule enacted
one and a half years after trial and applied by an appel-
late court three years after trial. The conduct in question,
untimely service, and its effect of depriving the trial court
of jurisdiction, had long since come and gone.
The Ninth Circuit’s opinion, “much like extending a
Statute of limitations after the pre-existing period of lim-
itations has expired, impermissibly revives a moribund
cause of action (see, e.g., Chenault v. U.S. Postal Service, 37
F.3d 535, 537, 539 (CA 9, 1994)”, Hughes Aircraft, supra,
L.Ed.2d at 146. Such a result is hardly “just”.
4 Retroactive application of amended Rule 50(b) would be
beneficial for G.E. as it allows it to escape the harsh impact
occasioned by application of strict rules setting jurisdictional
timelines. But that does not necessarily make it “just”. In the
end, any erosion of the principle of finality harms G.E. and all
other actual or potential litigants. The doctrine of finality of
litigation and strict adherence to timelines of a jurisdictional
nature requires a finding that this rule, as amended, not be
given retroactive effect. See Browder v. Dept. of Corrections, supra
and Carlisle v. United States, 517 U.S. 416, 134 L.Ed.2d 613, 116
S.Ct. 1460 (1996).
19
Clearly, on these facts, there was a definitive change
in the “substance of the extant cause of action”. Hughes
Aircraft at 146. Just as a subsequent amendment to a
statute of limitation will not revive a time-barred claim,
subsequent amendment of a rule of civil procedure may
not revive a time-barred post-trial motion.15 This Court
recently affirmed the Landgraf principles in Hughes Air-
craft, supra at 143, noting:
“The principle that the legal effect of conduct
should ordinarily be assessed under the law that
existed when the conduct took place has time-
less and universal appeal.” Hughes Aircraft at
143 (emphasis added).
Applying this rule to the facts at hand, the “legal
effect of conduct” at issue (untimely compliance with
pre-1995 Rule 50(b) and Rule 59 filing and service
requirements) would be, as it has been for decades, that
the trial court lacked jurisdiction to rule on said motions.
Likewise, G.E. would be precluded, save for a timely
appeal, from challenging the judgment. To allow retroac-
tive application of Rule 50(b) in this case becomes
“unjust”, as it changes the “legal effect of the conduct”
after it had occurred.
15 See e.g., Bulgo v. Munoz, 853 F.2d 710, 715 (9th Cir. 1988)
(declining to give retroactive effect to amendment of statutes of
limitations which would have revived plaintiff’s barred claim;
Davis v. Valley Distrib. Co., 522 F.2d 827, 830 (9th Cir. 1975), cert.
den’d, 429 U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977) (general
rule that subsequent extensions of statute of limitation period
will not revive a claim previously barred). Chenault v. United
States Postal Service, supra at 539 (new statute of limitation will
not revive claim barred under prior law-to do so would “alter
the substantive rights” of a party.)
20
In discussing the retroactive application of an
amended rule to cure invalid service, the court in United
States v. 51 Pieces of Real Property in Roswell, NM, 17 F.3d
1306, 1312 (10th Cir. 1994), noted:
Moreover, even if the provisions were otherwise
retroactive, we doubt that they could retroac-
tively validate service of process that was
invalid when executed.!®
Retroactive application of the 1995 version of Rule
50(b) in this case is also impracticable. To do so would
require fabrication of jurisdiction for the trial court that
had long been lost under the old rule.
Ill.
The Ninth Circuit’s retroactive application of amended
Rule 50(b) in this case violates the judicial doctrine
favoring finality of judgments set forth in Browder v.
Department of Corrections, supra.
Retroactive application of Rule 50 in this case ignores
the long established doctrine favoring finality of litiga-
tion. Browder v. Director, Department of Corrections of IIli-
nois, supra. Browder held that time limits prescribed in the
civil rules are mandatory and jurisdictional noting:
16 See also Boltes v. Entex, 158 FR.D. 110, 112 (S.D. Tex.
1994). It is “well established” that in reviewing proper service,
the court looks at the “version of the Federal Rules of Civil
Procedure in effect at the time the complaint is filed.” The same
argument applies with equal force to this case. In both instances,
the relevant conduct speaks to the power of the court to address
the issues and the substantive rights of the parties to maintain
or terminate an action.
21
The purpose of the rule is clear: It is “to set a
definite point of time when the litigation shall
be at an end, unless within the time prescribed
application has been made; and if it is not, to
advise prospective appellees that they are freed
of the appellant’s demand. Any other construc-
tion of the statute would defeat its purpose.
Browder at 54 L.Ed.2d 531.
Browder further noted that only a timely filing of a
post-trial motion would toll the applicable period in
which to file an appeal. Id. at 533. Rule 50 and 59 motions
are based in the interests of “speedy disposition and
finality”. Browder at 536.
This court has specifically recognized, in James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 115 L.Ed.2d
481, 111 S.Ct. 2439, reh. den., __ (US) __ 130 L.Ed.2d
1131, 115 S.Ct. 1179 (1991) that retroactive application of
statutes in civil cases must be done with the principle of
finality of judgments in mind:
Of course, retroactivity in civil cases must be
limited by the need for finality, see Chicot
County Drainage Dist. v. Baxter State Bank, 308
U.S. 371, 84 L.Ed.2d 329, 60 S.Ct. 317 (1940);
once suit is barred by res judicata or by statutes
of limitation or repose, a new rule cannot
reopen the door already closed.
James B. Beam Distilling v. Georgia, at 115 L.Ed.2d 492.
More recently, this court in Carlisle v. United States,
517 U.S. 416, 134 L.Ed.2d 613, 116 S.Ct. 1460 (1996), held
as untimely, a motion for judgment of acquittal filed one
day after the seven day period set forth in Fed.R.Crim.P.
22
29(a) and ruled as a result that the district court lacked
jurisdiction to grant the motion.!”
In this case, as in Carlisle, the plain, unambiguous
directions of the rule were not complied with by the party
seeking relief. In this case, as in Carlisle, the trial court
loses jurisdiction absent a timely motion. In either event,
the use of an amended rule to “vest” a court with juris-
diction outside the applicable timeliness is prohibited by
the judicial doctrine favoring finality of judgments. In
this case, Hopkins and others were deprived of their
substantive right to a several million dollar judgment, by
a trial court lacking jurisdiction based upon inap-
propriately and ill-preserved motions by G.E. Only the
retroactive application of the 1995 version of Rule 50 by
the Ninth Circuit makes this unjust result possible. This
action is not only far from the usual course of judicial
proceedings, but it has the effect of rewarding the dilat-
ory conduct of the moving party, without justification,
and further sanctions the failure of the trial court to
exercise jurisdiction in accordance with established law.
This court should grant this petition and provide
direction to the lower courts as to the proper rule to be
applied when the retroactive application of a civil rule
17 The Carlisle court, at 627, citing to United States v. Locke,
471 U.S. 84, 101, 85 L.Ed.2d 64, 105 S.Ct. 1785 (1985), noted the
problems associated with application of a rule authorizing
untimely filings of post-trial motions:
“If one day late filings are acceptable, ten day late
filings might be equally acceptable, and so on and the
cascade of exceptions would engulf the rule erected
by the filing deadline... .”
23
implicates the finality of judgment doctrine set forth
above.
IV.
Retroactive application of amended Fed.R.Civ.P. 50(b)
violates Hopkins’ Fifth Amendment rights to Due Pro-
cess, Seventh Amendment Right to Trial by Jury, and
the statutory commands of the Rules Enabling Act, 28
U.S.C. Sec. 2072.
Retroactive application of amended Rule 50(b) vio-
lates Hopkins’ substantive rights to due process under
the Fifth Amendment. Once the trial court lost jurisdic-
tion to rule on post-trial motions,.and the period of time
to appeal lapsed, Hopkins’ judgment became final. A
judgment, much like a property right, may not be vacated
by retroactive legislation without violating due process
rights.1§
The doctrine of “vested rights” represents due pro-
cess, and is grounded upon the recognition that “rights
fixed by judgment are, in essence, a form of property over
which the legislatures have no greater power than any
other [property].” Georgia Association of Retarded Citizens
v. McDaniel, 855 F.2d 805, 810 (11th Cir. 1988) (emphasis
omitted), cert. den’d, 490 U.S. 1090, 109 S.Ct. 24, 31, 104
18 As noted in Landgraf, supra at 253:
The Fifth Amendment's Takings Clause prevents the
Legislature (and other government actors) from
depriving private persons of vested property
rights . . . The Due Process Clause also protects the
interests in fair notice and repose that may be
compromised by retroactive legislation ...
24
L.Ed.2d 988 (1989). In Hodges v. Snyder, 261 U.S. 600, 603,
43 S.Ct. 435, 436, 67 L.Ed. 819 (1923), this court noted:
... the private rights of parties which have been
vested by the judgment of a court cannot be
taken away by subsequent legislation, but must
be thereafter enforced by the court regardless of
such legislation.
See also Pennsylvania v. Wheeling and Belmont Bridge Co.,
59 U.S. 421, 437 (18 How.), 15 L.Ed. 435 (1852).
Further, in applying amended Fed.R.Civ.P. 50(b), the
Ninth Circuit violated the statutory dictates of The Rules
Enabling Act, 28 U.S.C. Sec. 2072(b), which provides that
while the Supreme Court may enact rules of procedure,
any such rule “shall not abridge, enlarge or modify any
substantive right.” Thus while amended Rule 50(b) may
be valid on its face, its application in this case violates the
Rules Enabling Act’s specific prohibition against impair-
ing the substantive rights of a party to a previously
vested judgment which had become final at the conclu-
sion of the case due to G.E.’s failure to timely serve and
file post-trial motions and appeal. The retroactive appli-
cation of amended Rule 50(b) also violates the spirit and
mandate set forth in Fed.R.Civ.P. 1, requiring a “just,
speedy, and inexpensive” determination of actions.
The Ninth Circuit, in retroactively applying amended
Rule 50(b), seriously abridged and modified the substan-
tive rights of Hopkins to judgment while enlarging the
rights of G.E. by allowing it to avoid compliance with the
law then in effect. This represents a departure by the
Schudel court of the usual and accepted judicial procedure
and warrants this Court’s exercise of its supervisory
al ———————
25
power so as to insure that the lower courts comply with
the dictates of 28 U.S.C. Sec. 2072 and the Due Process
Clause of the Fifth Amendment.
V.
The Trial court lacked jurisdiction pursuant to
Fed.R.Civ.P. 50(b) to grant JMOL in favor of G.E. and
order a new trial and the Ninth Circuit erred in failing
to ascertain whether the trial court properly ruled as a
matter of law that G.E. was entitled to judgment.
The Ninth Circuit and trial court erred by failing to
review other jurisdictional issues submitted, most notably
the propriety of the trial court’s grant of JMOL. Neither
court applied the applicable standard of review or case
law. Rather, the Schudel court merely ruled that since a
new trial under Rule 50(b) was ordered, it lacked appel-
late jurisdiction. Failure of the Schudel court to ascertain
the propriety of the trial court’s Rule 50(b) order repre-
sents a departure from usual and accepted judicial pro-
cedure, justifying this court’s exercise of its supervisory
powers.
The Schudel court held that the trial court granted
JMOL in G.E.’s favor as to certain “issues” in the Hop-
kins’ claim. However, the Ninth Circuit failed to address,
under the appropriate standard, de novo, whether the trial
court properly granted JMOL and if so, whether the trial
court acted properly in ordering a new trial. The Schudel
opinion essentially holds that a trial court may grant
JMOL on an “issue” such as one element of damages, and
then, regardless of whether the “claim” remained viable,
order a new trial. This reasoning is contrary to the
express wording of Rule 50(a) JMOL only appropriate if
26
“claim” cannot be maintained without “issue” in dis-
pute).
As each of the Hopkins’ claims for negligence and
loss of consortium were very much alive without the so-
called “neurologic” injuries due to overwhelming proof
of other respiratory and depressive injuries, the trial
court lacked authority to grant “JMOL” and order a new
trial.19 The Schudel decision below fails to even address
the propriety of such a ruling even though it is jurisdic-
tional in nature.2° Furthermore, neither the trial court nor
the Schudel court applied the standard of review that
holds JMOL is only appropriate when the evidence per-
mits one reasonable conclusion as to the verdict after viewing
the evidence in a light most favorable to the Hopkins.
Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir. 1993).
This failure is error requiring, at a minimum, that the
lower courts be directed to review the propriety of their
actions under the applicable standard.
19 The new trial was granted pursuant to Rule 50(b) and not
Rule 59.
20 Venagas v. Wagner, 831 F.2d 1514, 1519 (9th Cir. 1977)
directs that a new trial under Rule 50(b) may only be granted if
the “verdict is against the great weight” of the evidence or “it is
quite clear that the jury has reached a seriously erroneous
result”. The trial court failed to articulate any of the applicable
standards set forth in Venagas v. Wagner, supra.
27
VI.
The trial court erred in granting JMOL under
Fed.R.Civ.P. 50(b) as G.E. failed to preserve issues under
Fed.R.Civ.P. 50(a).
Regardless of whether the motions for new trial and
JMOL were timely served, the trial court lacked jurisdic-
tion to entertain motions that were not previously raised
in G.E.’s Rule 50(a) motion. Murphy v. City of Long Beach,
914 F.2d 183, 186 (9th Cir. 1990). Specifically, G.E. con-
ceded that both Hopkins suffered from respiratory illness
and Mrs. Hopkins suffered from depression. Nor did G.E.
ever challenge the sufficiency of evidence as to Hopkins’
loss of consortium claims. More importantly, G.E. failed
to specifically address and raise in its Rule 50(a) motions
any issues relative to any alleged “neurologic” claims
advanced by the Hopkins. The failure of G.E. to challenge
the sufficiency of evidence as to the Hopkins’ claims in its
Rule 50(a) motions deprives the trial court of jurisdiction
to entertain Rule 50(b) on matters so omitted. Although
this issue is jurisdictional, the Ninth Circuit did not
address the propriety of the trial court’s grant of JMOL
on these issues and whether the claim could still be
maintained under Rule 50(b). Lifshitz v. Walter Drake and
Sons, Inc., 806 F.2d 1426 (9th Cir. 1986).
28
VIL.
The trial court lacked jurisdiction to vacate the judg-
ment based upon insufficient proof of damages for one
injury (neurologic) when sufficient evidence existed of
other injuries such as respiratory, depression and loss
of consortium.
Fed.R.Civ.P. Rule 51 provides that exceptions to jury
instructions must be taken before the case is submitted to
the jury. See also Fed.R.Civ.P. 49(a) (failure to designate
factual issue in special verdict waives issue after it goes
to jury). G.E. did not challenge the instructions given,
which asked the jury to determine damages but failed to
specify sub-categories of injury such as neurologic and
respiratory injuries. In fact, G.E. proposed an instruction
nearly identical to that given by the Court. In so doing,
G.E. waived its right to claim error in instructing the jury.
As G.E. waived this right, it is wholly inappropriate for
the trial court to sua sponte find that there was instruc-
tional error.?! In this respect, as G.E. failed to preserve
any issue relative to the jury instructions and/or move
for a directed verdict for insufficient proof of damages on
a particular injury, the trial court lacked jurisdiction pur-
suant to Rule 50(a) and 50(b) to grant JMOL on the so-
called unproven issues, vacate the verdict and order a
new trial. The Schudel decision below failed to address
the lack of jurisdiction of the trial court to grant judgment
21 The trial court’s grant of JMOL and a new trialis based,
in the Hopkins case, on the fact that it could not tell what
portion of the damages were attributable to proven injuries (i.e.
respiratory /depression) and which portion were attributable to
the so-called unproven “neurologic” claim.
29
on this basis, regardless of the timeliness of filing or
service of post-trial motions.
Jury verdicts are due considerable deference. Kern v.
Levelor Lorentzen, Inc., 899 F.2d 772, 775 (9th Cir. 1990).
Eastman Kodak Company v. Southern Photo Materials Com-
pany, 273 U.S. 359, 71 L.Ed. 684, 47 S.Ct. 400 (1927) (issue
of damages having been submitted to the jury, “its deter-
mination as to this matter is conclusive”). This line of
case law is consistent with a logical interpretation of Rule
50(b), which requires the court to review whether the
“claim” (in this case negligence) remains despite absence
of proof on an issue. The trial court's reasoning, that a
“reasonable” juror must have found Hopkins presented a
neurologic claim, failed to recognize that jurors are pre-
sumed to follow instructions and would not award dam-
ages for injuries unsupported by the evidence. Nor did
the trial court recognize its limitations in thereafter dis-
secting a verdict.”
In this case, G.E. had a right and responsibility to
request the jury be instructed relative to particular inju-
ries. G.E. waived this right. The trial court is thus pre-
cluded from segregating damages by injury and ordering
a new trial based upon G.E.’s failure to request appropri-
ate instructions.
22 Washington law provides that failure of a jury to
attribute damages to particular injuries, absent request by the
defendant, prohibits a trial court from thereafter attempting to
dissect the jury’s verdict. Wheeler v. Catholic Archdiocese of
Seattle, 124 Wn.2d 634, 880 P.2d 29 (Wn. 1994). See also McCord v.
Maguire, 873 F.2d 1271, amended, 885 F.2d 650 (9th Cir. 1989).
30
CONCLUSION
The Ninth Circuit opinion, Schudel et al. v. General
Electric, supra has decided issues that this Court should
decide, namely the retroactive application of an amended
civil rule (Rule 50(b)) to a case that had already been
completed. Further, the Schudel court’s opinion is in con-
flict with decisions of this court and other circuits relative
to the proper default rule of retroactivity. The Ninth
Circuit Schudel court, much like the Ninth Circuit in the
Hughes Aircraft, supra, ruled that an amended rule of
procedure applies retroactively. Along with these impor-
tant federal questions, this court should exercise its
supervisory authority to insure that the lower courts did
not exceed their authority under the then existing rules
and case law. For reasons set forth above, Petitioners
respectfully request that this Court grant their Petition
for a Writ of Certiorari.
Respectfully submitted this 20th day of February,
1998.
THomas C. PHELAN
Attorney for Petitioners
John and Ruth Hopkins
App. 1
APPENDIX A
David SCHUDEL, et al., Plaintiffs,
and
Deborah Guaragna-Williams,
Plaintiff-Appellee,
Vv.
GENERAL ELECTRIC CO., a foreign corporation;
Kaiser Aluminum And Chemical Corporation, a
foreign corporation, Defendants-Appellants.
David SCHUDEL; Daniel Glass; Merlin E. Carlson;
Timothy Schudel; Sandra Schudel, husband and wife,
and the marital community composed thereof;
Kathrene Rae Howell; Craig A. Thompson; John
Hopkins; Ruth Hopkins, husband and wife, and
the marital community composed thereof,
Plaintiff-Appellants,
V.
GENERAL ELECTRIC CO., a foreign corporation;
Kaiser Aluminum and Chemical Corporation, a
foreign corporation, Defendants-Appellees.
Nos. 95-35092, 95-35145.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 8, 1996.
Decided July 23, 1997.
Joe G. Hollingsworth, Donald W. Fowler and Katharine R.
Latimer, Spriggs & Hollingsworth, Washington, DC, and
James B. King, Keefe, King & Bowman, Spokane, WA, for
defendants-appellants-cross-appellees.
Craig F. Schauermann, Schauermann & Thayer, Van-
couver, WA, and Marcia M. Meade, Dawson & Meade,
App. 2
Spokane, WA, for plaintiffs-cross-appellants David
Schudel, Timothy Schudel, Daniel Glass, Sandra Schudel,
Merlin Carlson, Kathrene Howell, and Craig Thompson.
Thomas C. Phelan, Vancouver, WA, for plaintiffs-
cross-appellants John and Ruth Hopkins.
Craig F. Schauermann, William K. Thayer, and David
I. Gedrose, Schauermann & Thayer, Vancouver, WA, for
plaintiff-appellee Deborah Guaragna-Williams.
Kit A. Pierson, Jenner & Block, Washington, DC, for
amicus curiae.
Appeals from the United States District Court for the
Eastern District of Washington; Fred Van Sickle, District
Judge, Presiding. D.C. No. CV-92-00081-FVS.
Before BROWNING, D.W. NELSON, and FER-
NANDEZ, Circuit Judges.
JAMES R. BROWNING, Circuit Judge:
This diversity case involves claims for damages from
negligence and loss of consortium against defendants
General Electric Company and Kaiser Aluminum and
Chemical Corporation. Kaiser contracted with General
Electric to clean up polychlorinated biphenyls (PCBs) at
Kaiser’s Trentwood facility in Spokane, Washington. Nine
of the ten plaintiffs were employed by General Electric on
the cleanup.! These plaintiffs alleged they developed
various neurological and respiratory problems from
1 The tenth plaintiff, Sandra Schudel, did not work at the
site, but asserted a loss of consortium claim as the wife of
plaintiff Tim Schudel.
a i ie einen sine See ce gical
- App. 3
exposure to two cleaning solvents, trichloroethane (TCA)
and perchloroethylene (Perc).
A jury returned verdicts for the plaintiffs. The defen-
dants moved for JNOV or new trial. The district court
affirmed the verdict in favor of one plaintiff, Deborah
Williams. The court granted JNOV with respect to respi-
ratory injuries? asserted by Merlin Carlson (“Carlson”)
and with respect to neurological injuries? asserted by
Kathrene Froese, John Hopkins, and Ruth Hopkins (“the
Froese plaintiffs”). The court ordered a new trial with
respect to injuries of Carlson and the Froese plaintiffs as
to which JNOV had not been granted. Finally, the court
granted JNOV on all claims asserted by the five remain-
ing plaintiffs (“the Schudel plaintiffs”*).
Defendants appeal the verdict in favor of plaintiff
Williams. The other plaintiffs appeal the granting of
motions for JNOV or new trial. We address four issues:
(1) whether the district court had jurisdiction over the
defendants’ motions for JNOV or new trial; (2) whether
we have jurisdiction to review the district court’s order
for JNOV and new trial as to Carlson and the Froese
plaintiffs; (3) whether the district court erred by granting
2 With respect to Carlson, the term “respiratory injuries”
applies to respiratory injuries, fatigue, overall body pain, and
all other alleged injuries that do not fall within the term
“neurological injuries.”
3 With respect to these plaintiffs, the term “neurological
injuries” applies to neurological injuries, headaches, rashes, and
all other alleged injuries that do not fall within the term
“respiratory injuries.”
4 David Schudel, Tim Schudel, Sandra Schudel, Daniel
Glass, and Craig Thompson.
App. 4
JNOV against the Schudel plaintiffs without considering
expert testimony the court concluded after trial had been
erroneously admitted; and (4) whether the district court
properly admitted expert testimony on behalf of plaintiff
Williams.
I. District Court Jurisdiction Over the Defendants’
Motions for JNOV or New Trial
Plaintiffs argue the district court lacked jurisdiction
to consider defendants’ motions for JNOV or new trial
because the motions were not properly served.> When the
motions were filed, Federal Rules of Civil Procedure 50
and 59 required the defendants to both file and serve
such motions within ten days after entry of judgment.®
Defendants filed the motions and delivered them to Fed-
eral Express for service on the tenth day after judgment.
While personal delivery or delivery to the U.S. Postal
Service would have satisfied the service requirement,
delivery to Federal Express did not. Magnuson v. Video
Yesteryear, 85 F.3d 1424, 1431 (9th Cir.1996).
Rules 50 and 59 were amended in 1995, however, to
require only that such motions be filed, not served, no
later than 10 days after entry of judgment. See
Fed.R.Civ.P. 50(b), 59(b). The amendments took effect
5 Plaintiff Carlson does not raise this issue; his attorney
was timely served.
6 See former Fed.R.Civ.P. 50(b) (“Such a motion [for
judgment as a matter of law] may be renewed by service and
filing not later than 10 days after entry of judgment.”); former
Fed.R.Civ.P. 59(b) (“A motion for a new trial shall be served not
later than 10 days after the entry of judgment.”).
App. 5
December 1, 1995, and “govern all proceedings in civil
cases thereafter commenced and, insofar as just and prac-
ticable, all proceedings in civil cases then pending.” S.Ct.
Order, Amendments to the Federal Rules of Civil Pro-
cedure (Apr. 27, 1995).
This proceeding was pending on December 1, 1995,
and no prejudice will result from application of the
amendments. All parties have briefed the substantive,
non-jurisdictional arguments in detail. No additional
action on the part of the court or the parties is required to
proceed. We have applied amended federal rules of
appellate procedure retroactively in similar circum-
stances, see Schroeder v. McDonald, 55 F.3d 454, 459-60 (9th
Cir.1995); Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th
Cir.1994), and do so here.
Il. Appellate Jurisdiction Over Order Granting JNOV
and New Trial to Carlson and the Froese Plaintiffs
The district court granted JNOV with respect to res-
piratory injuries allegedly sustained by Carlson and with
respect to neurological injuries allegedly sustained by the
Froese plaintiffs. The court vacated the verdicts for these
plaintiffs on the ground that they were “tainted” by the
evidence of the injuries as to which JNOV had been
granted, and ordered a new trial as to Carlson’s neuro-
logical injuries and the Froese plaintiffs’ respiratory inju-
ries. The court certified appeals from the orders for new
trial pursuant to Federal Rule of Civil Procedure 54(b).”
7 Under Fed.R.Civ.P. 54(b), when a lawsuit involves
multiple claims or multiple parties, a district court “may direct
App. 6
We have jurisdiction to review final judgments on
entire claims, not on individual issues. An order adjudi-
cating only one issue that is not determinative of an
entire claim is not appealable even if a district court
certifies the order under Rule 54(b). Arizona State Carpen-
ters Pension Trust Fund v. Miller, 938 F.2d 1038, 1039 (9th
Cir.1991). We must determine independently whether a
certified judgment is final as to a particular claim.® Id.
Litigants who advance a single legal theory of lia-
bility applied to one set of facts allege a single claim.
Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 743, 96 S.Ct.
1202, 1206, 47 L.Ed.2d 435 (1976). Carlson and Froese
alleged a single claim of negligence, not separate claims
for neurological injury and respiratory injury. Similarly,
the Hopkinses alleged claims for negligence and loss of
consortium, not separate claims for neurological injury
and respiratory injury as to each claim.
The district court granted JNOV as to issues related
to certain injuries allegedly suffered by plaintiffs because
of defendants’ negligence. We have no jurisdiction to
the entry of a final judgment as to one or more but fewer than all
of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction
for the entry of judgment.”
8 Carlson and the Froese plaintiffs argue the standard of
review is not de novo, but abuse of discretion. We review the
certification of an appeal under Rule 54(b) for abuse of
discretion. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797 (9th
Cir.1991). Even though a decision is certified under Rule 54(b),
however, we must independently ensure that we are dealing
with a final judgment before exercising jurisdiction. Arizona
State Carpenters, 938 F.2d at 1039.
App. 7
review the court’s rulings on these issues because the
claims for negligence and the derivative claims for loss of
consortium have not been finally determined. The order
granting new trial is also interlocutory and not imme-
diately appealable. Allied Chem. Corp. v. Daiflon, Inc., 449
U.S. 33, 34, 101 S.Ct. 188, 189-90, 66 L.Ed.2d 193 (1980);
Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670, 671
(9th Cir.1985).9
Ill. Excising Testimony in Granting JNOV
The Schudel plaintiffs argue the district court erred
in excising the previously admitted testimony of Dr.
Paula Lantsberger before granting defendants’ motion for
JNOV. We agree.
Dr. Lantsberger was the only witness on causation on
behalf of the Schudel plaintiffs. Dr. Lantsberger described
symptoms and offered specific testimony regarding cau-
sation under two theories: a specific condition causation
theory; and a “whole person aggravation” theory. The
defendants filed a motion to exclude Dr. Lantsberger’s
causation testimony prior to trial and a motion to strike
® Carlson and the Froese plaintiffs argue this court has
jurisdiction to review a conditional grant of a new trial under
Fed.R.Civ.P. 50(c). See Air-Sea Forwarders, Inc. v. Air Asia Co., 880
F.2d 176, 190 n. 15 (9th Cir.1989) (stating that appellate courts
may review conditional new trial orders because the plain
language of Rule 50(c)(1) expressly permits this review). The
district court ordered a new trial under Rule 50(b), not Rule
50(c)(1). The order was not conditioned on reversal of the order
granting JNOV. Rule 50(b) does not provide for review of non-
conditional new trial orders.
App. 8
the testimony during trial. The district court did not rule
on these motions.
After the jury returned verdicts in favor of plaintiffs
and defendants moved for JNOV, the court held that Dr.
Lantsberger’s causation testimony based on the “whole
body aggravation” theory had been admitted erro-
neously. The court then considered the sufficiency of the
remaining evidence to support the jury verdicts and
granted the motion for JNOV. The court denied defen-
dants’ alternative request for a new trial.
Four circuits have held that, when deciding a motion
for JNOV, a trial court may not ignore evidence erro-
neously admitted at trial, reasoning that excluding evi-
dence after the verdict is unfair to a party who may have
relied on the determination that the evidence was admis-
sible.!° “If evidence is ruled inadmissible during the
course of the trial, the plaintiff has the opportunity to
introduce new evidence. However, when that evidence is
ruled inadmissible in the context of deciding a motion for
JNOV, the plaintiff, having relied on the evidence already
10 See Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692,
695-96 (11th Cir.1993); Douglass v. Eaton Corp., 956 F.2d 1339,
1343-44 (6th Cir.1992); Sumitomo Bank v. Product Promotions, Inc.,
717 F.2d 215, 218 (5th Cir.1983); Midcontinent Broadcasting Co. v.
North Cent. Airlines, Inc., 471 F.2d 357, 358-59 (8th Cir.1973). The
Third Circuit has held that such exclusion is proper as long as
other evidence relating to the same issue was not barred during
trial as cumulative, reasoning that the moving party has a
competing interest in litigating a case only once and expressing
doubt that litigants would hold back significant evidence at
trial. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1199-1200
(3d Cir.1993).
App. 9
introduced, is unable to remedy the situation.” Jackson v.
Pleasant Grove Health Care Ctr., 980 F.2d 692, 696 (11th
Cir.1993).
We recently indicated we would abide by the same
rule. See Central Office Tel., Inc. v. American Tel. & Tel. Co.,
108 F.3d 981, 993 (9th Cir.1997). We now hold that when
ruling on a Rule 50(b) motion, a district court should not
exclude evidence erroneously admitted at trial. The
record should be taken as it existed when the trial closed.
This rule promotes certainty: litigants need not supple-
ment conditionally admitted evidence, perhaps unneces-
sarily; and district courts need not speculate as to what
other evidence might have been offered if the evidence
had been excluded at trial. The rule promotes fairness:
punishing a litigant for the court’s erroneous admission
of evidence is unfair; and the remedy of a new trial is
available to put both sides on an equal footing. Jackson,
980 F.2d at 696 n. 4.
The district court properly concluded that Dr. Lants-
berger’s testimony based on the “whole person aggrava-
tion” theory of causation did not meet the standard of
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Daubert I ), (outlined in
Part IV of this opinion), and should have been excluded.
Once the jury rendered its verdict based on the improp-
erly admitted evidence, however, the district court erred
in excising that evidence when ruling on the motion for
JNOV. Considering all the evidence admitted at trial,
including Dr. Lantsberger’s “whole person aggravation”
theory testimony, we conclude there was sufficient evi-
dence to support the jury verdicts in favor of the Schudel
plaintiffs.
App. 10
Nonetheless, these verdicts may not stand. The dis-
trict court erred in denying defendants’ motion for new
trial. A new trial should be granted when the erroneous
admission of evidence affected the substantial rights of
the parties. Fed.R.Civ.P. 61. Dr. Lantsberger’s testimony
was the only evidence of causation; its erroneous admis-
sion was undoubtedly prejudicial.
IV. The Defendants’ Appeal
Defendants argue the neurological symptom causa-
tion testimony of Dr. William Morton, Dr. Daniel Gold-
stein, and Dr. Lantsberger underlying the jury verdict for
Deborah Williams was not admissible under Federal Rule
of Evidence 702.1!
A.
The Supreme Court held in Daubert I, 509 U.S. at
590-91, 113 S.Ct. at 2795-96, that Rule 702 requires the
trial judge to determine that proposed scientific expert
testimony will be both reliable and relevant. See also
Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1313 (9th
Cir.1995) (Daubert II ).
Scientific knowledge is reliable if it is “ground[ed] in
the methods and procedures of science” and “connotes
more than subjective belief or unsupported speculation.”
11 Defendants also argue the trial court should have held a
pretrial hearing on the admissibility of the testimony of
Williams’ experts. Because we conclude the expert testimony
should have been excluded, we do not decide whether a pretrial
hearing should have been held.
App. 11
Daubert I, 509 U.S. at 590, 113 S.Ct. at 2795. In determin-
ing reliability, “[t]he focus . . . must be solely on princi-
ples and methodology, not on the conclusions that they
generate.” Id. at 595, 113 S.Ct. at 2797.
Evidence of scientific knowledge is relevant if the
“reasoning or methodology properly can be applied to
the facts in issue.” Id. at 593, 113 S.Ct. at 2796; see also
Daubert II, 43 F.3d at 1315 (evidence of scientific knowl-
edge must “logically advance[ ] a material aspect of the
proposing party’s case”). A court’s determination of rele-
vance must consider the applicable substantive standard.
See id. at 1320. Under Washington tort law, a plaintiff
must show that the “the act complained of ‘probably’ or
‘more likely than not’ caused the subsequent disability.”
O'Donoghue v. Riggs, 73 Wash.2d 814, 440 P.2d 823, 830
(1968). This is virtually the same as the standard under
California tort law applied in Daubert II. See 43 F.3d at
1320. Under this standard, we held in Daubert II that
expert testimony offered to prove causation did not sat-
isfy the relevance requirement because the evidence sug-
gested only that use of the drug at issue “could possibly
have caused plaintiffs’ injuries,” rather than “more likely
than not” caused the injuries, i.e., that use of the drug
more than doubled the likelihood the injuries would
occur. 43 F.3d at 1320-22.
B.
The district court approved reliance by Williams’
experts on interview data collected by Diane Nebel.
App. 12
Nebel contacted many of the workers at the Kaiser facil-
ity after one of the project supervisors fell ill with Legion-
naire’s disease. Nebel found no evidence of a
Legionnaire’s outbreak, but did discover that some of the
workers, including the plaintiffs, suffered from various
medical symptoms. The data collected in Nebel’s Legion-
naire’s disease investigation provided the basis for much
of the scientific testimony presented by Williams’ experts
at trial.
The district court acted within its discretion in
approving the use of this data by Williams’ expert wit-
nesses. Dr. Goldstein and Dr. Lantsberger both testified
the data was of the type toxicologists consider reliable
and regularly rely upon. See Fed.R.Evid. 703.
Dr. Morton testified that plaintiff Williams suffered
from solvent-induced toxic encephalopathy which “more
probably than not” was caused by exposure to Perc and
TCA. Dr. Morton’s testimony met Daubert’s relevance
requirement. However, it did not meet Daubert ’s require-
ment of reliability.
Dr. Morton’s conclusions were based on extrapola-
tion from studies that: (1) involved organic solvents other
than TCA or Perc; and (2) examined long-term exposure
at relatively low chemical concentrations or short-term
exposure at very high concentrations, rather than the
short-term, moderate-level exposure sustained by Wil-
liams. Dr. Morton did not establish it was scientifically
acceptable to draw general conclusions about the neuro-
toxicity of TCA and Perc from studies of other chemicals;
indeed, the testimony indicated small differences in
molecular structure often have significant consequences.
App. 13
As to differences in length and intensity of exposure,
the district court erroneously reasoned that because there
was evidence that acute exposure to TCA and Perc can
cause toxic encephalopathy, whether Williams’ exposure
was sufficient to cause her symptoms was a question for
the jury. Williams’ exposure was neither long enough nor
intense enough to fall within the ranges described in the
studies Dr. Morton relied upon. Extrapolation was neces-
sary to make the studies relevant, and there was no
showing that the necessary extrapolation was scien-
tifically acceptable.12
Dr. Goldstein’s testimony suffered from similar defi-
ciencies. Dr. Goldstein conceded that only five organic
solvents, none of which were involved in this case, had
been proven to be neurotoxic. He also testified that it
would be improper to infer conclusions as to the toxicity
of TCA and Perc based on the toxicity of other solvents,
and that repeated exposure to nonpersistent toxins such
as organic solvents over a long period must be docu-
mented to establish a causal relationship.
Dr. Goldstein acknowledged that the biochemical
mechanism of neurotoxicity from TCA and Perc has not
been demonstrated. Only two studies cited by Dr. Gold-
stein involved TCA and Perc, and neither met Daubert
standards. The Altman study found no relationship
between exposure to Perc and the toxic encephalopathy
or loss of consciousness alleged by the plaintiffs. The
12 Given our analysis of the admissibility of Dr. Morton’s
testimony, we need not consider defendants’ contention that his
testimony should have been excluded because testimony based
on case reports is not admissible under Daubert.
App. 14
Kalifant study involved long-term (7-15 years), repetitive
exposures to TCA at high levels.
Dr. Lantsberger’s testimony failed to meet Daubert ’s
relevance requirement. She testified it was only a “possi-
bility,” not a “probability,” that Williams suffered organic
brain damage from exposure to solvents at the facility. Dr.
Lantsberger admitted she could not testify to a specific
cause and effect relationship between Williams’ exposure
and health problems. She relied instead on a “whole
person aggravation” theory without establishing that the
theory had a scientific basis.
Dr. Lantsberger’s testimony regarding the hazards of
TCA and Perc was inadmissible under Daubert. Dr. Lants-
berger, like Dr. Goldstein, relied on the Altman and Kali-
fant articles to reach her neurotoxicity conclusions, and
like Dr. Goldstein, admitted that medical science has not
determined the effects of short-term exposure to the sol-
vents involved.
Plaintiff Williams points to other expert witnesses
whose testimony was not challenged by defendants. Only
one of these experts provided causation testimony, and
his testimony related only to Williams’ respiratory injury.
Considering all the evidence admitted at trial, includ-
ing the erroneously adinitted evidence, we hold the dis-
trict court properly denied defendants’ motion for JNOV
with respect to Williams. Admission of the challenged
expert testimony was prejudicial, however, because it was
the sole causation evidence with respect to Williams’
neurological symptoms. Accordingly, we vacate the judg-
ment entered on the jury verdict, reverse the district
App. 15
court’s denial of defendants’ motion for a new trial, and
remand.
CONCLUSION
We lack jurisdiction to review the district court’s
grant of JNOV and new trial as to plaintiffs Merlin Carl-
son, Kathrene Froese, John Hopkins, and Ruth Hopkins,
and DISMISS their appeals.
We REVERSE the grant of JNOV and the denial of the
motions for new trial as to plaintiffs David Schudel, Tim
Schudel, Sandra Schudel, Daniel Glass, and Craig
Thompson, and REMAND.
We find plaintiff Deborah Williams’ neurological
expert testimony on causation inadmissible, VACATE the
judgment entered on the jury verdict in her favor,
REVERSE the denial of the motion for new trial, and
REMAND.
DISMISSED in part, and VACATED, REVERSED, and
REMANDED in part. No costs allowed.
App. 16
APPENDIX B
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCHUDEL, et al.,
Plaintiffs,
and No. 95-35092
DEBORAH GUARAGNA- D.C. No.
WILLIAMS, CV-92-00081-FVS
Plaintiff-Appellee,
V.
GENERAL ELECTRIC CO., a
foreign corporation; KAISER
ALUMINUM AND CHEMICAL
CORPORATION, a foreign
corporation,
Defendants-Appellants.
ee ee
ASE RS yO Oy OTR Te
App. 17
DAVID SCHUDEL; DANIEL
GLASS; MERLIN E. CARLSON,
TIMOTHY SCHUDEL; SANDRA
SCHUDEL, husband and wife,
and the marital community
composed thereof; KATHRENE No. 95-35145
RAE HOWELL; CRAIG A. D.C. No
THOMPSON; RUTH HOPKINS, i: ae
husband and wife, and the lin ctinsnccindee
marital community composed ORDER
thereof, (Filed
Plaintiffs-Appellants, Nov. 24, 1997)
V.
GENERAL ELECTRIC CO., a
foreign corporation; KAISER
ALUMINUM AND CHEMICAL
CORPORATION, a foreign
corporation,
me me ee ee ee ee ee”
Defendants-Appellees.
~~"
Before: BROWNING, D.W. NELSON, and FER-
NANDEZ, Circuit Judges
The petition for rehearing of Merlin E. Carlson, Jr. is
DENIED.
The panel has voted to DENY the petition for rehear-
ing of David Schudel, Timothy Schudel, Sandra Schudel,
Daniel Glass, Craig Thompson, Deborah Williams, and
Kathrene Froese. Judge Browning and Judge Fernandez
have voted to deny the suggestion for rehearing en banc,
and Judge Nelson so recommends.
The panel has voted to DENY the petition for rehear-
ing of John Hopkins and Ruth Hopkins. Judge Browning
App. 18
and Judge Fernandez have voted to deny the suggestion
for rehearing en banc, and Judge Nelson so recommends.
The full court has been advised of the suggestions for
rehearing en banc, and no judge of the court has
requested a vote on the suggestions for rehearing en
banc. Fed. R. App. P. 35(b).
The petitions for rehearing are DENIED and the sug-
gestions for rehearing en banc are REJECTED.
App. 19
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
DAVID SCHUDEL, et al, et ux,
No. CS-92-081-
FVS
ORDER RE POST-
)
Plaintiffs, :
)
GENERAL ELECTRIC COMPANY TRIAL MOTIONS
)
)
)
)
VS.
and KAISER ALUMINUM AND (Filed
CHEMICAL CORPORATION, Nov. 25, 1994)
Defendants.
BEFORE THE COURT are certain post-trial motions.
They were decided without oral argument on November
22, 1994. See Local Rule (“LR”) 7(h)(3).
I. PLAINTIFFS’ MOTION TO STRIKE
A. Background
Judgment was entered on July 13, 1994. On July 27,
1994, the defendants filed motions for both judgments as
a matter of law and a new trial. Fed.R.Civ.P. 50(b);
Fed.R.Civ.P. 59. That same day, copies of the motions
were mailed to opposing counsel via Federal Express.
The plaintiffs now move the Court to strike the
defendants’ Rule 50(b) and Rule 59 motions. They argue
that the motions were not served in a timely manner.
App. 20
B. Ruling
Motions for judgment as a matter of law and for a
new trial must be filed and served within ten days of the
= date judgment is entered. Fed.R.Civ.P. 50(b); Fed.R.Civ.P.
59(b). In calculating the ten-day deadline, neither inter-
mediate weekends nor legal holidays are counted.
Fed.R.Civ.P. 6(b). Thus, the defendants had until the
twenty-seventh of July to file and serve their Rule 50(b)
and Rule 59 motions.
It is undisputed that the defendants mailed copies of
their motions to all opposing parties by Federal Express
_ on July 27, 1994. Since “[s]ervice by mail is complete
upon mailing,” Fed.R.Civ.P. 5(b), the defendants’ motions
would appear to have been both filed and served prior to
the deadline.
The plaintiffs disagree. They contend that sending
documents by Federal Express does not constitute “mail-
ing” within the meaning of Rule 5(b).
Notwithstanding the plaintiffs’ disagreement, they
have failed to cite a single decision adopting their inter-
pretation of Rule 5(b). They are forced to rely upon
Transco Leasing Corp. v. United States, 992 F.2d 552, 554 n.2
(5th Cir. 1993), a case in which the Fifth Circuit cautioned,
in dicta, “that service by Federal Express may not be
service by mail.”
1 Professors Wright and Miller mention Transco, but do not
analyze the issue. 4A C. Wright, A. Miller, Federal Practice and
Procedure, § 1148 (2d ed. Supp. 1994).
a i al ia aaah noe pera
App. 21
The defendants, by contrast, have cited two district
courts decisions that considered - and rejected — the
plaintiffs’ position. Both held that Rule 5(b) does not
require mailing through the United States Postal Service.
United States v. Certain Real Property & Premises Known As
63-29 Trimble Rd., 812 F.Supp. 332, 334 (E.D.N.Y. 1992);
Edmond v. United States Postal Serv., 727 FSupp. 7, 11
(D.D.C. 1989), rev'd on other grounds, 949 F.2d 415 (1991).
Here, it was reasonable for the defendants to believe
that the method of service they utilized would be more
prompt than ordinary first class mail, and every bit as
reliable. Given the plaintiffs’ failure to cite authority sup-
porting their interpretation of Rule 5(b), and the fact that
two district courts have specifically rejected their posi-
tion, the plaintiffs’ motion to strike will be denied.
II. DEFENDANTS’ MOTION FOR JUDGMENT AS A
MATTER OF LAW.
The defendants offer six reasons why the Court
should grant judgment as a matter of law. Fed.R.Civ.P.
50(b). They are as follows: (1) the plaintiffs’ experts based
their opinions upon unreliable data; (2) certain experts
were not qualified, and their opinions do not constitute
“scientific knowledge” within the meaning of Rule 702;
(3) even if the disputed opinions are admissible, they fail
to establish causation; (4) under Washington law, many of
Dr. Lantsberger’s opinions regarding causation are
legally insufficient; (5) the plaintiffs were loaned ser-
vants; and (6) Kaiser owed no duty of care to the plain-
tiffs.
App. 22
A. Reliability/Loaned Servant/Duty
Not all of the defendants’ arguments require in-depth
analysis. The first, fifth, and sixth may be disposed of
rather quickly.
1. Reliability of Data
The Court refused to admit the “Nebel” exhibits
because they were hearsay, and the plaintiffs had not
demonstrated the applicability of an exception to the
hearsay rule. Moreover, even if an exception had applied,
the exhibits were cumulative. (Tr. at 5790-91).
Later, the defendants attempted to impeach Craig
Thompson with statements he made to Ms. Nebel. See
Fed.R.Evid. 801(d)(2)(A) (admission by party-opponent).
The plaintiffs objected. (Tr. at 5970.) In sustaining the
objection, the Court said, in part, “They [the Nebel
exhibits] were not admitted because of concerns about
reliability.” (Tr. at 5984.)
The defendants have interpreted the court's state-
ment as a finding that the Nebel exhibits were unreliable.
When both sections of the transcript are read in context, it
is evident that no such finding was intended.
2. Loaned Servant
The jury was instructed properly on the question of
“loaned servant.” Since there is substantial evidence to
support the jury’s determination that the plaintiffs were
not loaned servants, there is no basis for granting the
defendants judgment on this issue.
i i i ai in ia ee paca anaes
App. 23
3. Duty of Care
With Respect to the question of “duty,” the defen-
dants have cited no new authority. The Court is satisfied
that a duty existed.
B. Admissibility of Certain Expert Opinions
The second argument focuses on the admissibility of
opinions given by Drs. Lantsberger, Goldstein, and Mor-
ton. The defendants submit that these three witnesses
were not qualified to render opinions regarding toxic
encephalopathy, and that their theories of organic brain
damage are not supported by the scientific literature.
Both prongs of the second argument were raised
prior to (and during) trial. After reviewing the materials
presented by the parties, the Court ruled against the
defendants on both issues.
Since then, the Ninth Circuit has decided two civil
cases, the outcome in each hinging on the admissibility of
expert testimony. Both opinions discuss the requirements
of Rule 702 in light of Daubert v. Merrell Dow Pharmaceuti-
cals, Inc., __ U.S. __, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993). Both agree that expert testimony may not be
admitted unless the trial judge first determines that the
expert’s conclusions are based upon scientific knowledge.
Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir.
1994); Claar v. Burlington Northern R. Co., 29 F.3d 499, 502
(9th Cir. 1994).
Although Hopkins and Claar are clearly relevant here,
neither dictates a result different than that previously
App. 24
reached by the Court. As a result, the Court declines to
disturb its prior rulings regarding toxic encephalopathy.
C. Sufficiency of Certain Expert Opinions (Back-
ground)
The third and fourth arguments challenge the suffi-
ciency of certain expert opinions — primarily those of Dr.
Lantsberger. Because this part of the defendants’ Rule
50(b) motion attacks sufficiency, it is necessary to
describe the disputed opinions in some detail.
1. Dan Glass
Mr. Glass reported a number of symptoms to Dr.
Paula Lantsberger, including heart palpitations, head-
aches, memory loss, and respiratory problems. Dr. Lan-
tsberger was the only expert who attempted to link any of
Glass’ specific symptoms to work at Kaiser.
+ * +
probable than not basis, I think that her conditions as we
have outlined them have been aggravated by her expo-
sure at, by her work at the Kaiser plant.” (Tr. at 3145.)
8. Ruth Hopkins/John Hopkins
The defendants concede that the Hopkins’ principal
claims involved respiratory injuries. The defendants
argue, however, that the Hopkins also maintained a claim
for brain damage. The record reflects the following con-
cerning the defendants’ contention:
App. 25 _
During direct examination, Dr. Samuel Milham was
asked by counsel for the Hopkins to read the conclusion
of a study to the jury. Milham relied, in part, “[T]he severe
neurologic injuries suffered by the workers in the incident are
sobering reminders that easily preventable organic sol-
vent related occupational illness continues to occur in a
highly developed country in the late 20th century.” (Tr. at
1436.) (Emphasis added.)
In addition, the Hopkins’ attorney participated
actively in the cross-examination of Dr. Neil Rosenberg,
the defendant’s expert on the subject of solvent-induced
organic brain damage. (Tr. at 9473-89, 9529-40.) He ques-
tioned Rosenberg about neurologic injury in general, (see,
e.g., Tr. at 9481-82), and Mrs. Hopkins’ case in particular -
including magnetic resonance imaging (“MRI”.) (Tr. at
9538-39.) He also had Rosenberg confirm that his testi-
mony had nothing to do with the “pulmonary aspect of
this case.” (Tr. at 9540.)
During closing, the Hopkins’ attorney devoted most
of his time to pulmonary complaints. He did not restrict
himself to that subject, however. For example, he asked
the jury to think about Ruth Hopkins’ “memory prob-
lems.” (Tr. at 12022.) Later, he said, “These chemicals can
hurt you. They can hurt your organs. They can hurt your
brains.” (Tr. at 12028.)
It was at this point that he asked the jury to discount
Dr. Rosenberg’s testimony about magnetic resonance
imaging and Toluene abusers. In essence, he argued that
his clients’ exposure to organic solvents was distinguish-
able from that of the Toluene abusers Dr. Rosenberg had
App. 26
described, thereby implying that it was of no significance
that Mrs. Hopkins’s MRI was normal. (Tr. at 12028-29.)
D. Sufficiency of Certain Expert Opinions (Analysis)
A motion for judgment as a matter of law may be
granted when “a party has been fully heard with respect
to an issue and there is no legally sufficient evidentiary basis
for a reasonable jury to have found for that party with respect
to that issue. . . . ” Fed.R.Civ.P. 50(a)(1). See Montiel v. City
of Los Angeles, 2 F.3d 335, 342 (9th Cir.1993). The moving
party must demonstrate that insofar as the verdict is
concerned, the evidence permits but one reasonable con-
clusion. Conner v. Sakai, 15 F.3d 1463, 1467 (9th Cir.1993).
* * *
and “overall body pain.”
With respect to respiratory complaints, Dr. Lants-
berger was forced to concede that Mr. Carlson does not
have Reactive Airways Dysfunction Syndrome or indus-
trially induced asthma. Similarly, with respect to “bone
pain and joint aches,” she could only say, “I don’t know
what caused these guys to have the aches and pains, but I
do know that a significant number of the workers did have
them.” Given the record, a reasonable jury could not have
found for Mr. Carlson on his non-neurological claims.
7. Deborah Williams
Ms. Williams presented claims for organic brain dam-
age and respiratory injury. A number of experts testified
on her behalf. Although Dr. Lantsberger opined that Ms.
App. 27
Williams’ “conditions” were aggravated by work at Kai-
ser, it is questionable whether her testimony would have
had appreciable impact on the jury’s verdict.
8. Ruth Hopkins/John Hopkins
Based upon the evidence presented by the Hopkins,
their cross-examination of Dr. Rosenberg, and the manner
in which they argued their case, a reasonable jury would
have assumed the Hopkins were making a claim for brain
damage. Granted, the jury may not have viewed it as the
Hopkins’ principal claim, but the jury would have under-
stood that it was a very real part of the Hopkins’ case.
Therein lies the problem. Having chosen to make a claim
for solvent-induced brain damage, the Hopkins were
obligated to prove it. They failed to do so. A reasonable
jury could not have found that the Hopkins suffered
neurologic injuries as a proximate cause of the defen-
dants’ negligence. The defendants are therefore entitled
to judgment as a matter of law on that particular claim.
E. Sufficiency of Certain Expert Opinions (Con-
clusion)
In view of the foregoing, the defendants are entitled
to judgment as a matter of law on a number of claims.
They include the following: all claims asserted by Dan
Glass, David Schduel, Craig Thompson and Tim Schudel;
all non-respiratory claims asserted by Kathrene Froese;
all non-neurological claims asserted by Merlin Carlson;
and all non-respiratory claims asserted by the Hopkins.
App. 28
Although several claims must be dismissed, several
remain. The next question is whether a new trial is neces-
sary.
Approximately six weeks prior to trial, the Court
asked the plaintiffs to list their claims against the defen-
dants. (Order Re Daubert Procedure (Ct. Rec. 326) at 7.)
The plaintiffs declined to do so. (Plaintiffs’ Lists of
Claims (Ct. Rec. 334).) Instead, they presented the jury
with a long list of symptoms, only some of which could
be connected to the plaintiffs’ work at Kaiser on a more
probable than not basis. Furthermore, when it came time
to instruct the jury, the plaintiffs rejected a suggestion
that the jurors be asked to
* * *
App. 29
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
DAVID SCHUDEL; DANIEL
GLASS; MERLIN E. CARLSON;
TIMOTHY L. SCHUDEL and
SANDRA SCHUDEL, husband and
wife and the marital community
composed thereof; KATHRENE
FROESE; CRAIG A. THOMPSON;
DEBORAH GUARANGA
WILLIAMS; and JOHN HOPKINS
and RUTH HOPKINS, husband
and wife and the marital
community composed thereof,
Plaintiff(s),
JUDGMENT IN A
CIVIL CASE
CASE NUMBER:
CS-92-0081-FVS
(Filed
Jul. 13, 1994)
Vs.
GENERAL ELECTRIC COMPANY,
a foreign corporation; and
KAISER ALUMINUM
CORPORATION, a foreign
corporation,
Defendant(s).
ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee
This action came on for trial before the Court and a
jury, honorable Fred Van Sickle, District Judge, presiding,
and the issues having been duly tried and the jury having
duly rendered its verdict,
IT IS ORDERED AND ADJUDGED that the plaintiff,
Tim Schudel, recover of the defendants General Electric
Company and Kaiser Aluminum Corporation, the sum of
One Million Fifty-One Thousand Two Hundred Seventy
App. 30
Dollars ($1,051,270.00), with interest thereon at the rate of
5.31% as provided by law, and his costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
Sandra Schudel, recover of the defendants General Elec-
tric Company and Kaiser Aluminum Corporation, the
sum of Fifty Thousand Dollars ($50,000.00) on her claim
for loss of consortium, with interest thereon at the rate of
5.31% as provided by law, and her costs of action;
IT Is ORDERED AND ADJUDGED that the plaintiff,
John Hopkins, recover of the defendants General Electric
Company and Kaiser Aluminum Corporation, the sum of
One Million Three Hundred Forty-Eight Thousand
Twenty Dollars ($1,348,020.00), with interest thereon at
the rate of 5.31% as provided by law, and his costs of
action;
IT Is ORDERED AND ADJUDGED that the plaintiff,
Ruth Hopkins, recover of the defendants General Electric
Company and Kaiser Aluminum Corporation, the sum of
Six Hundred Two Thousand Two Hundred Fifty Dollars
($602,250.00) on her claim for loss of consortium, with
interest thereon at the rate of 5.31% as provided by law,
and her costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
Ruth Hopkins, recover of the defendants General Electric
Company and Kaiser Aluminum Corporation, the sum of
One Million Four Hundred Four Thousand Forty Dollars
($1,404,040.00), with interest thereon at the rate of 5.31%
as provided by law, and her costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
John Hopkins, recover of the defendants General Electric
a
App. 31
Company and Kaiser Aluminum Corporation, the sum of
Six Hundred Two Thousand Two Hundred Fifty Dollars
($602,250.00) on his claim for loss of consortium, with
interest thereon at the rate of 5.31% as provided by law,
and her costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
Merlin Carlson, recover of the defendants General Elec-
tric Company and Kaiser Aluminum Corporation, the
sum of Two Million Seven Hundred Seventy-Five Thou-
sand Seven Hundred Sixty-Eight Dollars ($2,775,768.00),
with interest thereon at the rate of 5.31% as provided by
law, and his costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
Daniel Glass, recover of the defendants General Electric
Company and Kaiser Aluminum Corporation, the sum of
Nine Hundred Fifty-Six Thousand One Hundred Forty-
Six Dollars ($956,146.00), with interest thereon at the rate
of 5.31% as provided by law, and his costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
Deborah Guarangna Williams, recover of the deferidants
General Electric Company and Kaiser Aluminum Corpo-
ration, the sum of One Million Nine Hundred Seven
Thousand Seven Hundred Eighty-Three Dollars
($1,907,783.00), with interest thereon at the rate of 5.31%
as provided by law, and her costs of action;
IT IS ORDERED AND ADJUDGED that the plaintiff,
Kathrene Froese, recover of the defendants General Elec-
tric Company and Kaiser Aluminum Corporation, the
sum of One Million Four Hundred Fifty-Nine Thousand
Three Hundred Thirty-Two Dollars ($1,459,332.00), with
App. 32
interest thereon at the rate of 5.31% as provided by law,
and her costs of action;
IT Is ORDERED AND ADJUDGED that the plaintiff,
David Schudel, recover of the defendants General Electric
Company and Kaiser Aluminum Corporation, the sum of
One Million One Hundred Thirty Thousand Seven Hun-
dred Eleven Dollars ($1,130,711.00), with interest thereon
at the rate of 5.31% as provided by law, and his costs of
action;
IT Is ORDERED AND ADJUDGED that the plaintiff,
Craig Thompson, recover of the defendants General Elec-
tric Company and Kaiser Aluminum Corporation, the
sum of Five Hundred Fifty-Six Thousand One Hundred
Ninety-Nine Dollars ($556,199.00), with interest thereon
at the rate of 5.31% as provided by law, and his costs of
action;
Dated: July 13, 1994 JAMES R. LARSEN, Clerk
by: /s/ Charles L. Randazzo
Charles L. Randazzo
Deputy Clerk
App. 33
APPENDIX E
FILED IN THE
U.S. DISTRICT
EASTERN DISTRICT OF WASHINGTON
Nov. 25, 1994
JAMES R. LARSEN, CLERK
__. DEPUTY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
DAVID SCHUDEL, et al.,_)
ie )
Plaintiff, ) AMENDED
vs. ) JUDGMENT IN A
GENERAL ELECTRIC ) CIVIL CASE
COMPANY and ) CS-92-081-FVS
KAISER ALUMINUM )
AND CHEMICAL )
CORPORATION,
Defendant. )
)
This action came to hearing before the Court. The
issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the plaintiffs’
motion to strike defense motions as untimely is DENIED.
The defendants’ motion to strike plaintiffs’ memorandum
is DENIED. The plaintiffs’ motion to strike reply is
DENIED. The defendants’ motion for judgment as a mat-
ter of law is DENIED IN PART and GRANTED IN
PART. The judgments entered herein are re-opened and
modified as follows: a) The defendants are GRANTED
App. 34
judgment as a matter of law on all claims asserted by Dan
Glass, David Schudel, Craig Thompson and Tim Schudel.
Those claims are DISMISSED WITH PREJUDICE. b) The
defendants are GRANTED judgment as a matter of law
on all non-respiratory claims asserted by Kathrene
Froese. Those claims are DISMISSED WITH PREJU-
DICE. c) The defendants are GRANTED judgment as a
matter of law on all non-neurological claims asserted by
Merlin Carlson. Those claims are DISMISSED WITH
PREJUDICE. d) The defendants are GRANTED judg-
ment as a matter of law on all non-respiratory claims
asserted by Ruth Hopkins and John Hopkins. Those
claims are DISMISSED WITH PREJUDICE. The defen-
dants are GRANTED a new trial on all remaining claims.
The defendants’ motion for new trial or alternative relief
is DENIED. The plaintiffs’ timely request for attorneys’
fees and costs shall have the same effect under FRAP
4(a)(4) as a Rule 59 motion, and the period for filing a
notice of appeal shall be extended accordingly. The plain-
tiffs’ request for attorneys’ fees and costs is DENIED IN
PART and GRANTED IN PART. Ms. Deborah Williams is
directed to submit a revised cost bill. Defendant Kaiser
Aluminum and Chemical Corporation’s motion to amend
or correct judgments is GRANTED. The judgments
entered herein shall refer to “Kaiser Aluminum and
Chemical Corporation” NOT “Kaiser Aluminum Corpo-
ration.” The plaintiffs’ motion for order shortening time
is DENIED. The plaintiffs’ motions for order setting hear-
ing on discovery abuses are DENIED. The defendants’
App. 35
motion for stay of proceedings to enforce judgments is
DENIED.
Dated: November 25, 1994 JAMES R. LARSEN, Clerk
by: /s/ Annie Smith
Annie Smith,
Deputy
App. 36
APPENDIX F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
DAVID SCHUDEL, et al., et ux.,
— No. CS-92-081-
Plaintiffs,
FVS
ORDER RE
)
)
)
VS. )
GENERAL ELECTRIC COMPANY ; MOTIONS
)
)
)
)
and KAISER ALUMINUM AND TO AMEND
CHEMICAL CORPORATION, AND CERTIFY
Defendants. (Filed
Jan. 17, 1995)
BEFORE THE COURT are motions to amend Order
Re Post-Trial Motions,! and to authorize appeals from it.
All motions were heard without oral argument on Janu-
ary 13, 1995.
CLAIM OF SANDRA SCHUDEL
Relief Requested
Mr. Timothy Schudel alleged that he suffered various
injuries while working on the Kaiser cleanup project. His
wife, Sandra Schudel, brought separate claims for loss of
consortium based upon the injuries her husband
allegedly suffered. Mrs. Schudel’s loss-of-consortium
claims were not addressed in the Order Re Post-Trial
Motions. Now that Timothy Schudel’s claims have been
1 The order was entered on November 25, 1994. It is
docketed as pleading 571.
;
.
App. 37
dismissed with prejudice, the defendants move the Court
to dismiss Sandra Schudel’s loss-of-consortium claims.
Ruling
The defendant’s motion to amend (Ct. Rec. 574) is
granted. Ms. Sandra Schudel’s claims against the defen-
dants will be dismissed with prejudice.
MOTION FOR NEW TRIAL
Relief Requested
After the jury returned its verdicts, the defendants
moved for a new trial (Ct. Rec. 486). Except in the case of
Deborah Williams, the Court did not address the merits
of the defendants’ motion. (In her case, the defendant's
motion was denied.) The defendants now move the
Court, pursuant to Fed.R.Civ.P. 50(c)(1), to issue a condi-
tional ruling with respect to the other plaintiffs.
Ruling
The defendant’s motion for new trial will be denied
with respect to all plaintiffs.
HOPKINS’ MOTION TO RECONSIDER
Relief Requested
Plaintiffs Ruth Hopkins and John Hopkins move the
Court to reconsider its decision vacating the verdicts in
their favor and ordering a new trial. If the Court declines
to do so, Ruth Hopkins moves the Court to clarify its
App. 38
order regarding her claims. She notes that the Order Re
Post-Trial Motions dismisses all non-respiratory claims.
She wants to know whether the Court intended to pre-
clude her from recovering for depression (allegedly)
spawned by her respiratory problems.
Ruling
The Hopkins’ motion for reconsideration (Ct. Rec.
580) is denied except with respect to Ruth Hopkins’s
request for clarification of the Court’s ruling regarding
recovery of damages for depression. If, upon retrial, Ruth
Hopkins proves that she suffered depression as a result of
respiratory problems caused by the defendants, she may
recover damages for her depression.
RULE 54(b)
Relief Requested
Both sides move the Court to authorize appeals of the
judgments adjudicating the claims of Deborah Williams,
Dan Glass, David Schudel, Craig Thompson, Tim
Schudel, and Sandra Schudel. Fed.R.Civ.P. 54(b) (1994).2
In addition, plaintiffs Kathrene Froese, Merlin Carlson,
2 Rule 54(b) states, in pertinent part, “When more than one
claim for relief is presented in an action, ..., or when multiple
parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of
judgment.”
App. 39
Ruth Hopkins, and John Hopkins move the Court to
permit them to appeal the order granting a new trial.
Analysis
Under Rule 54(b), the Court must first determine
whether a final judgment exists. Curtiss-Wright Corp. v.
General Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64
L.Ed.2d 1 (1980). Once that task has been completed, the
Court must decide whether there is any just reason to
delay the appellate process. Id. at 8, 100 S.Ct. at 1465. In
doing so, the Court must consider both the administra-
tive impact of releasing claims for appeal, and “the equi-
ties involved.” Id. at 8, 100 S.Ct. at 1465.
1. Existence of final judgments
The claims of ten plaintiffs are at issue in this action.
Now that the Court has entered its Order Re Post-Trial
Motions, the claims of Deborah Williams, Dan Glass,
David Schudel, Craig Thompson, Tim Schudel, and
Sandra Schudel have been fully adjudicated. What of the
claims of Kathrene Froese, Merlin Carlson, Ruth Hopkins,
and John Hopkins?
In its order, the Court ruled that these four plaintiffs
(i.e., Kathrene Froese, Merlin Carlson, Ruth Hopkins, and
John Hopkins) could not recover damages for certain
(alleged) injuries. The judgments which had been entered
in their favor were vacated, and a new trial was ordered.
In other words, the order limited damages, but left their
negligence claims otherwise unresolved pending a new
App. 40 ss
trial. As a result, insofar as Kathrene Froese, Merlin Carl-
son, Ruth Hopkins, and John Hopkins are concerned, the
order is not a final judgment. See Arizona State Carpenters
Pension Trust Fund v. Miller, 938 F.2d 1038, 1040 (9th
Cir.1991) (holding that an order dismissing a claim for
punitive damages was not final).
2. No just reason for delay
(a) Dan Glass, David Schudel, Craig Thompson,
Tim Schudel, and Sandra Schudel
The record is now complete with respect to these five
claims. Nothing that might occur in district court will
affect appellate review of these dismissals. It is now up to
the Court of Appeals to determine whether each dis-
missal was proper. In doing so, the Court of Appeals will
have to review each claim separately. Consequently,
authorizing these five plaintiffs to appeal will not result
in unwarranted duplication of appellate effort.
(b) Deborah Williams
The verdict in favor of Ms. Williams was upheld.
Appellate review of that verdict will facilitate adjudica-
tion of those claims which must be retried.
3. The four remaining claims
The Court ordered a new trial with respect to the
claims of Kathrene Froese, Merlin Carlson, Ruth Hopkins,
and John Hopkins. An order granting a new trial is
interlocutory. As a general rule, it is not appealable under
App. 41
28 U.S.C. § 1291. Roy v. Volkswagenwerk Aktiengesellschaft,
781 F.2d 670, 671 (9th Cir.1985); Eaton v. National Steel
Products Company, 624 F.2d 863, 864 (9th Cir.1980). There
is an exception to that rule, however. An order granting a
new trial may be appealed if the district court no longer
had jurisdiction to do so. See Eaton, 624 F.2d at 864.
Here, the plaintiffs moved to strike the defendants’
post-trial motions, arguing that they were untimely. The
Court denied the plaintiffs’ motion, and granted post-
trial relief. Should the Court of Appeals disagree with
this Court’s assessment of the timeliness of the defen-
dants’ post-trial motions, the Court of Appeals will have
to determine whether this Court had authority to enter its
Order Re Post-Trial Motions. Thus, the Eaton exception
applies.
Ruling
There is no just reason to delay appeal of the Order
Re Post-Trial motions.
COST BILLS
Plaintiff Deborah Williams has submitted a revised
cost bill. No objections have been filed. Ms. William’s
request will therefore be approved.
The defendants are now the prevailing parties with
respect to the claims asserted by Dan Glass, David
Schudel, Craig Thompson, Tim Schudel, and Sandra
Schudel. The defendants move the Court (Ct. Rec. 274)
for an order indicating that they have ten days from Rule
App. 42
54(b) certification to file cost bills. Their request will be
granted.
IT IS HEREBY ORDERED:
1. The defendants’ motion to amend (Ct. Rec. 574) is
granted. Ms. Sandra Schudel’s claims against the defen-
dants are dismissed with prejudice.
2. The defendants’ motion for a conditional ruling
(Ct. Rec. 574) is granted in part. The defendants’ prior
motion for a new trial (Ct. Rec. 486) is denied with
respect to all plaintiffs.
3. The Hopkins’ motion for reconsideration (Ct.
Rec. 580) is denied except as indicated above.
4. The parties respective motions for Rule 54(b) cer-
tification (Ct. Recs. 574, 577) are granted.
(a) There is no just reason to delay appellate review
of the Court’s Order Re Post-Trial Motions (Ct. Rec. 571);
and
(b) Since the Clerk has already entered judgment as
directed by the Order Re Post-Trial Motions, that judg-
ment (Ct. Rec. 572) will become the final judgment for
purposes of Rule 54(b) upon entry of this order.
5. Deborah Williams's cost bill is approved.
6. The defendants are to submit a cost bill with
respect to the claims of Dan Glass, David Schudel, Craig
Thompson, Tim Schudel, and Sandra Schudel within ten
days of entry of this order.
7. Any other pending motions are denied as moot.
App. 43
IT IS ORDERED. The Clerk is hereby directed to file
this order, furnish copies to counsel, and close the case.
DATED this 13 day of January 1995.
/s/ Fred Van Sickle
FRED VAN SICKLE
United States District Judge
App. 44
APPENDIX G
CONSTITUTIONAL PROVISIONS AND RULES
INVOLVED
28 U.S.C. § 2072. Rules of procedure and evidence;
power to prescribe.
* + *
(b) Such rules shall not abridge, enlarge or
modify any substantive right. All laws in con-
flict with such rules shall be of no further force
or effect after such rules have taken effect.
Fed.R.Civ.P. 50(a)
(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully
heard on an issue and there is no legally suffi-
cient evidentiary basis for a reasonable jury to
find for that party on that issue, the court may
determine the issue against that party and may
grant a motion for judgment as a matter of law
against that party with respect to a claim
. that cannot under the controling law be
maintained . . . without a favorable finding on
that issue.
(1994 version).
Fed.R.Civ.P. 50(b)
(b) Renewal of Motion for Judgment After
Trial; Alternative Motion for New Trial. When-
ever a motion for a judgment as a matter of law
made at the close of all the evidence is denied or
for any reason is not granted, the court is
deemed to have submitted the action to the jury —
subject to a later determination of the legal
questions raised by the motion. Such a motion
App. 45
may be renewed by service and filing not later
than 10 days after entry of judgment. A motion
for a new trial under Rule 59(b) may be joined
with a renewal of the motion for judgment as a
matter of law, or a new trial may be requested in
the alternative. If a verdict was returned, the
court may, in disposing of the renewed motion,
allow the judgment to stand or may reopen the
judgment and either order a new trial or direct
the entry of judgment as a matter of law. If no
verdict was returned, the court may, in dispos-
ing of the renewed motion, direct the entry of
judgment as a matter of law or may order a new
trial.
(1994 version).
Fed.R.Civ.P. 50(b)
(b) Renewing Motion for Judgment After
Trial: Alternative Motion for a New Trial. If,
for any reason, the court does not grant a
motion for judgment as a matter of law made at
the close of all evidence, the court is considered
to have submitted the action to the jury subject
to the court’s later deciding the legal questions
raised by the motion. The movant may renew its
request for judgment as a matter of law by filing
a motion no later than 10 days after entry of
judgment - and may alternatively request a new
trial or join a motion for a new trial under Rule
59. In ruling on a renewed motion, the court
may:
1. If a verdict was returned:
(A) Allow the judgments to stand,
(B) Order a new trial, or
App. 46
(C) Direct entry of judgment as a matter of
law; or
2. If no verdict was returned:
(A) Order a new trial, or
(B) Direct entry of judgment as a matter of
law.
(Amended version created by order dated April 27, 1995
amending rule effective 12/1/95).
Fed.R.Civ.P. 59(b) and (d)
(b) Time for Motion. A motion for a new
trial shall be served not later than 10 days after
the entry of the judgment.
* 2 *
(d) On Initiative of Court, Not later than 10
days after entry of judgment the court on its
own initiative may order a new trial for any
reason for which it might have granted a new
trial on motion of a party. After giving the par-
ties notice and an opportunity to be heard on
the matter, the court may grant a motion for a
new trial, timely served, for a reason not stated
in the motion. In either case, the court shall
specify in the order the grounds therefor.
(1994 version).
Fed.R.Civ.P. 59(b) and (d)
(b) Time for Motion. Any motion for a new
trial shall be filed no later than 10 days after
entry of the judgment.
os
———————EEE
App. 47
(d) On Court’s Initiative; Notice; Specifying
Grounds. No later than 10 days after entry of
judgment the court, on its own, may order a
new trial for any reason that would justify
granting one on a party’s motion. After giving
the parties notice and an opportunity to be
heard, the court may grant a timely motion for a
new trial for a reason not stated in the motion.
When granting a new trial on its own initiative
or for a reason not stated in a motion, the court
shall specify the grounds in its order.
(Amended version of rule effective December 1, 1995).
The Supreme Court order dated April 27, 1995,
found at 131 L.Ed.2d xcii, provides as follows:
ORDERED:
1. That the Federal Rules of Civil Procedure for
the United States District Courts be, and
they hereby are, amended by including
therein amendments to Civil Rules 50, 52,
59, and 83.
2. That the foregoing amendments to the Fed-
eral Rules of Civil Procedure shall take
effect on December 1, 1995, and shall govern
all proceedings in civil cases thereafter com-
menced, and, insofar as just and practicable,
all proceedings and civil cases then pending.
3. That THE CHIEF JUSTICE be, and hereby is,
authorized to transmit to the congress the
foregoing amendments to the Federal Rules
of Civil Procedure in accordance with the
provisions of Section 2072 of Title 28, United
States Code [28 U.S.C.S. Section 2072].
App. 48
AMENDMENT V OF UNITED STATES CONSTITUTION
CAPITAL CRIMES; DOUBLE JEOPARDY; SELF-
INCRIMINATION; DUE PROCESS; JUST COM-
PENSATION FOR PROPERTY
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in the time of
War or public danger; nor shall any person be
subject for the same offense to be twice put in
jeopardy in life or limb; nor shall be compelled
in any criminal case to be witness against him-
self, nor be deprived of life, liberty or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation.
AMENDMENT VII OF UNITED STATES CONSTITUTION
CIVIL TRIALS
In Suits of common law, where the value and
controversy shall exceed $20.00, the right of trial
by jury shall be preserved and no fact tried by a
jury, shall be otherwise re-examined in any
Court of the United States, than according to the
rules of the common law.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.