Appendix VOL II — Schudel v. General Electric Co.
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F Supreme Court, 0.8.
a» FILED
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~ 971410 FEB 2 3 1998
NS 5s eat
In The
Supreme Court of the United States
OCTOBER TERM, 1997
DAVID SCHUDEL, DANIEL GLASS: TIMOTHY SCHUDEL:
SANDRA SCHUDEL. husband and wifc. and the marital community
composed thercof. KATHRENE RAE HOWELL: CRAIG A.
THOMPSON. DEBBIE GUARGANA (WILLIAMS). JOHN
HOPKINS: RUTH HOPKINS: husband and wifc. and the marital
community composed thercof,
Plaintiffs
MERLIN E. CARLSON. JR.
Plaintiff-Petitioner
v.
GENERAL ELECTRIC COMPANY. a forcign corporation:
KAISER ALUMINUM AND CHEMICAL CORPORATION.
a forcign corporation.
Defendants-Respondents
On Petition for Writ Of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
APPENDIX VOLUME Il
Marcia M. Meade
Attorney for Petitioner/Counsel of Record
DAWSON & MEADE
1300 W. Dean
Spokane, Washington 99201-2015
(509) 328-4266
APPENDIX E
Schudel. et al.. v. General Electric and Kaiser
Aluminum and Chemical Corp.. No. 92-00081 (E.D. Wash,
March 7, 1994) (Plaintiffs' Lists Of Claims. Theories Of
Liability. And Identity Of Experts Who Will Be Called)......... T7la
Schudel. et al.. v. General Electric and Kaiser
Aluminum and Chemical Corp., No. 92-00081 (E.D. Wash,
June 27, 1994) (Plaintiffs’ Memorandum On
Potential Instructional Error By Attempting To
ee cia rroactetnmnenvincncauewerniers 88a
Schudcl. ct al.. v. Gencral Electric and Kaiser
Aluminum and Chemical Corp.. No. 92-0008 1
(Dery Temtrecticns (ERMINE D) «<<... -52 52sec cece crccsscnearesnes 93a
Schudc!. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp., No. 92-00081 (E.D. Wash.
July 27. 1994) (Defendants’ Motion For Judgment
a oh a insiencialeatiaennnacet Gavi 99a
Schudel. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp.. No. 92-00081 (E.D. Wash.
July 27. 1994) (Defendants’ Motion For New Trial Or Alternative
Schudel, ct al.. v. General Electric and Kaiser
luminum and Chemical Corp.. No. 92-000%1 (E.D. Wash
December 9, 1994) (Motion That The Order Of
November 25. 1994. Is A Final Decision And There
Oe Fe BU NE WO IUD oss cescnsseiccn secs cceesinsdsncserenec 103a
|
Schudcl. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp.. No. 92-00081 (E.D. Wash.
December 29. 1994) (Plaintiffs: Reply To Defendants”
Opposition To Fed.R.Civ.P. 54(B) Language) ...................... 106a
Schudel. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp.. No. 92-00081 (E.D. Wash.
December 28. 1994) (Affidavit Of Marcia M. Mcadc In
Response To Defendants Opposition To
The Frep 54(B) Language |w/ attachments])......................... 13a
Schudel. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp.. No.95-35092 and 95-35145
(9th Cir.. January 31. 1995) (Bricf In Support Of
ata Ce TID a sinha ees 125a
Schudel. ct al.. v. General Electric and Kaiscr
Aluminum and Chemical Corp.. No.95-35092 and 95-35145
(9th Cir.. January 17. 1995) (Appellant Carlson's Motion To
Remand For Lack Of District Court Jurisdiction And Stay
Of Scheediallc (Frag Sil Cie. 20 BGI a cssis vcs cee nals. 133a
Schudcl. et al.. v. Gencral Electric and Kaiser
Aluminum and Chemical Corp.. No.95-35092 and 95-35145
(9th Cir.. January 17, 1995) (Appellant Carlson's
Memorandum In Support Of Remand. Reinstatement Of
Verdict. And Stay Of Proceedings Under Cir. R. 27-11.) ......137a
Schudel. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp., No.95-35092 and 95-35145
(9th Cir., March 7, 1995) (Appellants’ Schudel. Glass,
Schudel, Schudcl. Howell (Froesc). Thompson. Hopkins
And Hopkins Motion For Remand And For Stay Of
Schedule Pursuant To Circuit Rule 27.11) .0....000..000000ccccce.. I5la
Schudcl. ct al.. v. General Electric and Kaiser
Aluminum and Chemical Corp.. No.95-35092 and 95-35145
(9th Cir.. February 3, 1995) (Appellant Carlson's Reply To
Appelice’s Memorandum In Opposition Of Remand) ........... 158a
Schudcl. et al.. v. General Electric and Kaiscr
Aluminum and Chemical Corp.. No.95-35092 and 95-35145
(9th Cir.. February 15, 1995) (Appellants-Plaintiffs’ And
Appellee Guaragna's Memorandum In Opposition To
Motion
Sa aera FER Re A se RE 166a
Organic Solvent l:ncephalopathy: An Old Hazard Revisited.
Ne I EL. HDR, Bk GBM wes cs sass vrnncvinssedensasnnsarerse 183a
Schudcl, ct al.. v. General Electric and Kaiscr Aluminum
and Chemical Corp.. No. 92-00081 (E.D. Wash.
January 18. 1994) (Offer Of Proof Of Danicl Goldstcin)....... 198a
Schudcl, ct al.. v. General Electric and Kaiscr Aluminum
and Chemical Corp.. No. 92-00081 (E.D. Wash.
March 7. 1994) (Declaration Of Samucl Milham. Jr.
Nee ey oa a ever dusk Sadateon ioscan 205a
Schudcl. ct al., v. General Eicciric and Kaiser Aluminum
and Chemical Corp.. No. 92-00081 (E.D. Wash,
March 7. 1994) (Offer Of Proof By Plaintiffs Re:
The Testimony Of Paula A. Lantsberger. M.D.) .................-. 219a
-jv-
71-A
Marcia M. Mcade FILED IN THE
Edward A. Dawson U.S. DISTRICT COURT
Dawson & Mcadc EASTERN DISTRICT OF WASHINGTON
1300 W. Dean MAR 07 1994
Spokane. WA 99201-2090 JAMES R. LARSEN. CLERK
(509) 328-4266 DEPUTY
Attornevs for Plaintiff Merlin Carlson
Craig F. Schaucrmann
Schaucrmann & Thayer
1700 E. Fourth Plain Blvd.
Vancouver. WA 98661
(206) 695-4244
Attorneys for Plaintiffs Schudel(s). Glass, Howell, Thompson &
Guarayna
Thomas C. Phelan
806 Officers Row
Vancouver. WA 98661
Attorney for Plaintiffs Hopkins
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL. ct. al.. ct. ) NO. 92-CS-0081-FVS
uX.. )
Plaintiffs, ) PLAINTIFFS' LISTS OF
V. ) CLAIMS, THEORIES
GENERAL ELECTRIC ) OF LIABILITY. AND
COMPANY. a foreign ) IDENTITY OF
corporation: and KAISER ) EXPERTS WHO WILL
ALUMINUM CORPORATION. ) BE CALLED
a forcign corporation, )
)
Defendants. )
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTTI
HOPKINS 1
72-A
I. PREAMBLE
Pursuant to order of the Court dated February 24, 1994,
and filed on February 25, 1994. the Plaintiffs hereby list cach
claim against the Defendants. including all theories of liability or
causation. and identifying cach expert who will be called to testify
concerning these claims and theories.
It should be noted that the Defendants have not challenged
all of Plaintiffs' experts. Contrary to footnote 3 of the Court's
order found on page 7, there arc numerous other experts who have
been identified by Plaintiffs. and will be called to testify. but who
have not been challenged by the Defendants under Daubert v.
Merrell Dow. At hearing on this matter, the Defendants identified
three additional experts that they were challenging under the
Daubert tests. Dr. Milham. and Mr. Estey and Brevsec. Plaintiffs
have supplemented the record with offers of proof as to these
Witnesses
In addition. Plaintiffs will call other cxperts. which
include all of the pulmonologists (who will testif\ as to the injurics
caused to Plaintiffs by the unprotected exposure to chemicals
provided by the Defendants). as well as "damage" experts who
Will testify to the care and treatment of Plaintiffs. These include
all of the pulmonologists (who will testify as to the injuries caused
to Plaintiffs by the unprotected exposure to chemicals provided by
the Defendants). as well as "damage" experts who will testify to
the care and treatment of Plaintiffs. These witnesses include Drs.
Keppel. Ostrow. Corlett. Chapman. Colistro. Herdner. and
Feldstein: and Greg Charboneau. Ed.D.: Deborah Lapoint. Bill
Mcchan, and Diane Nebel. None of these doctors or persons have
been challenged by Defendants as being unqualificd or their
opinions challenged. No response is made here. nor have any
proofs. concerning these individuals. been filed by Plaintiffs. It
should be noted that these doctors and persons (with the exception
of D. N. Lapoint) have been deposed and their Opinions and
mattcrs upon which they will testify have been long known by the
Defendants.
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTH
HOPKINS 2
73-A
Il. LIABILITY CLAIMS AGAINST DEFENDANT
GENERAL ELECTRIC
Plaintiffs claim that General Electric (GE). as a gencral
contractor for the clean-up of PCB contaminants at the Kaiser
Aluminum Trentwood Plant in Spokanc. Washington, breached a
varicty of dutics owed to the Plaintiffs. (who are cmplovees of
QPI. a subcontractor of GE). These breaches of dutics included:
(1) the negligent failure to provide a safe work place
for the workers:
(2) the negligent failure to provide the workers with
appropriate safety gear:
(3) the negligent failure to provide proper ventilation
in the work areca:
(4) the negligent failure to provide proper training to
the workers:
(5) the negligent failure to warn the workers of the
dangers of the chemicals being used:
(6) the negligent failure to provide competent
management and supervisory personnel:
(7) the negligent performance of the cleanup:
(8) the negligent use of hazardous chemicals:
(Y) the negligent failure to monitor and evaluate work
site and worker tonicity:
(19) — and otherwise failing to provide for the safcty of
the workers in this cnclosed. below ground. work place:
(11) the negligent failure of the defendants to follow state
and federal statutes and regulations applicable to the use of
chemicals: and
(12) the negligent failure of the defendants to follow the
suggcsted safcty procedures as sct forth in the MSDS's of cach
chemical used.
Additionally. the Plaintiffs contend that as a result of their
unprotected exposure to these chemicals that they were mjured.
The nature of the injurics are. in general. brain injurics (also
known as "toxic encephalopathy"). pulmonary injurics. and a
varicty of other ills that are known to occur with unprotected
exposures to these particular chemicals
EXHIB B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFES JOHN HOPKINS AND RUTH
HOPKINS 3
74-A
Plaintiffs will prove liability through the following means:
The testimony of Peter Breysce. Samucl Milham, William Morton.
and Danicl Goldstein will discuss the effects of Cxposure to these
chemicals. Plaintiffs will prove that the defendants violated
numerous statues and regulations as set forth below. Plaintiffs
Will provide the defendants violated their own policics and
procedurcs. The testimony of Breysce and Estey will disclose that
the defendants violated health and safety standards. The
testimony of Dale Haskins will concern violations of health and
safety standards as well as the internal safcty standards of GE.
Plaintiffs will also show. through the Matcrial Safety Data Shects
(MSDS) on cach of these chemicals that failure to use these
chemicals in a safe and appropriate way. produces injuries such as
those suffered by the Plaintiffs.
The expert witnesses’ testimony will be ticd in with the
testimony of the partics and lay witnesses who will report that the
chemicals were not used in accordance with the safcty provisions
of those MSDS's. nor in accordance with the safcty provisions of
those MSDS's, nor in accordance with the safety standard as sct
forth by the applicable regulations or statues and as testified to by
the experts.
Lastly. the testimony of the medical doctors and
ncuropsychologists will verify that the unprotected exposure to
these chemicals has caused the Plaintiffs’ injury.
II]. THEORY OF LIABILITY AS AGAINST
DEFENDANT KAISER ALUMINUM
Plaintiffs contend that the Defendant, Kaiscr Aluminum
(Kaiser). owed the same type of dutics to the Plaintiffs as GE.
Hence Kaiscr's negligence springs from a violation of thosc
dutics. The same injurics are complained of against Kaiser.
IV. PROXIMATE CAUSE CLAIMS AGAINST
DEFENDANTS
Plaintiffs’ claim that Defendants’ failures listed above.
1) caused detrimental changes in the Plaintiffs’ physical.
EXHIBIT 1B
SUMMARY OF CLAIMS OF INJURY FOR
PLAIN HIEES JOLIN HOPKINS AND RUTH
HOPKINS 4
75-A
mental and cognitive health:
2) caused aggravation of the Plaintiffs’ pre-cxisting
conditions:
3) the changes and aggravation have caused broad
limitations in the Plaintiffs’ abilitics to function on a daily basis in
all aspects of bodily functioning and daily existence:
4) the changes and aggravations have caused limitations
or destroyed Plaintiffs: ability and capacitics to function in daily
activitics and work
Plaintiffs contend that all the Plaintiffs were injured by the
Defendants failures listed above. The injurics vary in degree and
nature for the various Plaintiffs.
Proximate cause should be very simple. The Plaintiffs
were exposed to known toxic chemicals. As a result the Plaintiffs
were poisoned. However. to link up the chain of proximate cause
there arc a varicty of expert witnesses. who shall be testifying in
their respective arcas of expertise.
There was a degree of commonalty to the workers’
exposure to the chemical. There were also pertinent differences
between the exposures of the Plaintiffs. The Plaintiffs all had
different degrees of pre-injury functioning and health. as well as
individual susceptibility to the chemicals. On the basis of the
foregoing there are some slight variations in the issucs of
causation for cach Plaintiffs. There have been extensive
depositions and offers of proof on the issuc of causation for all the
Plaintiffs. Those depositions and offers of proof are all
incorporated by reference in this report to the Court.
There are potentially a varicty of issucs surrounding the
claims of injury surrounding the broad issuc of proximate cause.
There are common issues on causation to all the Plaintiffs. The
common tssucs provide an outline to the individual items for the
individual Plaintiffs.
The common issucs are addressed below.
|. The science of the chemicals involved is known.
a. The chemical make-up, weight, vapor
pressure, By-products, break down products and metabolites
of the chemicals involved are known.
b. The effects of these chemicals on the human
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAIN TIFES JOHN HOPKINS AND RUTII
HOPKINS 5
76-A
respiratory system. nervous system. gastrointestinal
system. liver, heart. kidneys. and skin are known.
¢. There has been extensive regulation by state
and federal agencies as to the protection of workers based
on the known science.
d. If the proper protection is not provided. the
cffect of these chemicals on humans is known
2. When published materials of the Defendants are
considered. there docs not appear to be a dispute between the
Plaintiffs and Defendants as to the general principles of causation.
3. What chemicals were present at the site are not
disputed Therefore. the physical events that occurred with
unprotected exposure to the chemicals should not be disputed by
the Defendants based upon the foregoing
4. The predicate of liability is that the workers should
have their respiratory system. nervous system. cardiovascular
system. skin. gastrointestinal tract and other bodily organs
protected from exposures to these chemicals. The dutics owed by
the Defendants should have been directed to protecting the worker
from exposure
a. The protection was cither nonexistent or
inadequate. so the plaintiffs were exposed to these chemicals
b. The cxposure to the chemicals varicd as to the
work performed and what chemicals the workers were working on
at Various times
5. The exposure of the workers were repeated. acute
exposures
a. There were large amounts of the chemicals
used in inadequately ventilated. below ground. confined arcas.
b. Most of these chemicals are heavier than air
c. Many of the chemicals were air borne
therefore were breathable.
d. There was no adequate dermal protection. so
the skin of the workers was dircctly exposed to the chemicals
that they were working with.
6. The workers manifested symptoms that would be
consistent with acutc toxic poisoning by these chemicals at the
time of cxposure
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIEES JOHN HOPKINS AND RUTH
HOPKINS 6
77-A
7. Although the Defendants did not provide medical
monitoring for bascline data. the signs and symptoms of the
workers were consistent with significant exposure to the chemicals
prescnt
a. Based upon the amount of chemicals present.
the known chemical properties of the chemicals and how the
chemicals were being used. experts can express opinions as to the
rclative degree of exposure that the Plaintiffs had.
b. The signs and symptoms documented by the
Health Department were what one would expect after a recent
acute. repeated exposure to the chemicals that were present at the
1988 clean up
c. The residual injurics the workers have arc
consistent with acute. repeated exposure of these chemicals
8 In the real world a varicty of professionals arc
involved in protecting the workcr.
a. Toxicologists. occupational medicine
physicians. ncuropsychologists. and industrial hygicnists are all
involved routinely in protecting the workers
b. Industrial hygienists. by the nature of their
work. have scientific training. cxpericnec. education and
background upon what the general cffect will be of these
chemicals on humans
c. Neuropsvchologists have knowledge.
education. training and background on what cftect these chemicals
have on cognitive functioning. behavioral functioning and
psychological functioning.
d. Medical doctors have familiarity with the
effect of these chemicals on humans. Further. medical doctors in
the regular courses of their practice consult and work with
industrial hygienists and ncuropsychologists as to the
effect of these chemicals on workers.
9. There are gencral principles of proximate cause which
apply to all of the workcrs.
a. The chemicals involved have known cffects on
the central and periphcral nervous system
b. The effects on the central nervous system
include cognitive abilitics, intellectual abilitics and aspects of
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTH
HOPKINS 7
78-A
personality:
c. Depending upon the nature and degree of the
cxposurc. route of exposure. and a person's individual
propensitics. the nervous system cffects can include
cognitive. intcllectual. personality. peripheral damage. or
any combination of the various aspects of the nervous svstcm
d. Anvy pre-existing limitations with intcliectual.
cognitive or personality function would be aggravated by exposure
to these chemicals
c. Persons with limitations of their intellectual.
cognitive or personalitics arc more susceptible to a greater
impact by exposure to these chemicals
f. The level of scientific testing available docs not
always permit health care providers to distinguish whether
an injury to the nervous system is damage to the central
nervous system or to the periphcral ncrvous system
However. the functioning 1s still limited whether it be
central or peripheral injury.
10. The respiratory svstcm is scnsitive to many of the
chemicals used at the site
a. Pre-existing history of Jung problems or
smoking predispose individuals to myurics.
b. Sudden onsets of Reactive Airways Discase
Syndrome ts consistent with toxic exposure to these chemicals
c. The persistent cough and respiratory problem
that the Plaintiffs have are consistent with mjurics to their
respiratory tracts from these chemicals
d. With Reactive Airwavs Discase the workers
become more sensitive to other chemicals. products. foods and
irritants in the cnvironment after their respiratory tract
was injured by these chemicals.
The issue of proximate cause will be presented through
the testimony of the workers. lay witnesses. 30(b)6 designecs.
cxpcrt witnesses. investigative and treating health care providers
and other types of cxpert witnesscs.
The published matcrial of General Electric addresses
succinctly the gencral premises of proximate cause. Plaintiffs
have extensive evidence as to Gencral Electric's own knowledge of
EXTHUBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOLIN HOPKINS AND RUT]
HOPKINS_-— 8
79-A
the dangers of these chemicals. Below are scv cral sections of
Gencral Electric's material that. along with the 30(b)6 testimony.
will prove there is no dispute as to the general principles of
proximate cause with these chemicals.
Gencral Electric knows that the chemicals used in the
clean up would cause injury when used without adequate
precautions and controls. In General Electric's book from the
Department of Corporate Rescarch and Development entitled
Solvents and Safety. by J. Merlin Nielsen. it has been written
Many industrial processes and products require
the usc of solvents for controlled dispersion of
matcrials. for. . . cleaning agents. Any such usc
involves potential hazards . . . to personnel.
Safety with solvents requires that all the hazards
involved in their particular used in a plant be
recognized and provided for. When solvents arc
needed. they must be used with adequate
precautions and control. with thorough training of
workers. and with continual vigilance. Casual
use of solvents without understanding and control
is courting disaster.
Gencral Electric knew that there should have been air
quality monitoring and medical monitoring of the workers. In
General Electric's Solvents and Safety the corporation states:
When toxic substances are used or gencrated in
the workplace. it is necessary to determine for
these substances the air-borne levels at which
workers arc or can be exposed during the full
working day. To make such an asscssment. a
survey of all the materials and their quantitics
used in the workplace must be made. and
processing which occurs. including products and
byproducts. must be identificd. From this
information. combined with a knowledge of the
workplace of the engineering controls (for
EXTIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTH
HOPKINS 9
ll
ee
80-A
example. gencral ventilation rates in the work
arca). of job assignments. processing conditions.
ctc. a rough approximation can be compared
with safety and health requirements. but it is
usually just a beginning of the information and
measurements needed.
Gencral Electric's own MSDS's and textbook Solvents
and Safety addresses foundationally the issuc of proximate cause.
In Solvent and Safety General Electric states:
The normal human body is able to cope with a
single exposure to a limited amount of toxic
material. but when the amount imposed on the
body's defenses exceeds certain levels. the body
cannot handle the problem and injury results.
This threshold level for injury can differ for cach
toxic substance and for cach individual. It also
can vary for a given individual at different times
depending on his metabolic situation. Illness and
discasc (past or current). fatigue and stress.
nutritional status. the prior or simultancous
presence of other toxic substances. ctc.. can call
affect the detoxifying mechanisms of the body.
Sex and genctic factors can influcnce the body's
ability to resist damage from certain toxic
matcrials.
The assault on the body's defenses by a toxic
matcrial may result from a single, relatively
massive confrontation (acute toxicity) or from
repeated or continuous contract with lowcr.
apparently tolerable levels for a long period of
time (chronic toxicity). (Emphasis added).
These admissions and others not sct forth hercin. should
be sufficicnt in and of themselves to submit these issues to the tricr
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTH
HOPKINS 10
81-A
of fact.
V. EXPERTS WHO WILL BE CALLED TO
TESTIFY REGARDING EACH CLAIM OR THEORY.
In addition to the named experts below. the Plaintiffs will
rely upon the breach of various governmental administrative
regulations and statutory cnactments. These violations will be
proven through the testimony of the Plaintiffs. Defendants’
cmplovees. answers to intcrrogatorics. and other discovery. and
deposition testimony. The regulations and statutes include:
R.C.W. 49.17.060. WAC 296-155-040(2): 29 U.S.C
651(b); WAC 296-62-05143. WAC 296-62-05403(1).(4). 29
CFR 1910.1200(c). (c). (g). (g) 8. (h). (h) 1.2: WAC 296-62-5409.
29 CFR 1910.1000 (Table Z-1.2) and its subparts: WAC 296-62-
07515 (Table 1.2): WAC 296-62-7501 and its subparts. WAC
296-24-020: 296-24-073. 296-62-07005. 296-62-07 107. 296-62-
07109: 296-62-14501. 296-62-14503: 296-62-14505: 296-62-
14507: 296-62-14517: 296-62-14529: and 296-62-1 1005. Rather
than repeat the meaning of cach of these subsections. the Court.
should it so desire should review Plaintiffs’ proposed instructions
on these issues. As the Court is well aware. the violation of a
regulation in Washington carrics the same cffect of negligence as
any other proofs of negligence made at trial
There are multiple Plaintiffs. The liability and proximate
cause issues are vast. Below is a simple graph dividing out the
various arcas of testimony from cxperts:
EXHIB B
SUMMARY OF CLAIMS OF INJURY FOR
PLAIN TEES JOHN HOPKINS AND RUTTI
HOPKINS 11
i hi
82-A
GENERAI SPECIFIC
NAMI STANDARDS BREACH PRONIM ATE PRONIMATE
BKI-YSSI xX xX
ESTEY xX xX
MORTON xX xX xX
GOLDSTEIN Xx xX xX X
MILIIAM xX xX xX
CRIPI xX xX
WI INS xX xX
CORLETI xX
CIIAPMAN xX X
LANISBERGER x x xX
CHARBONEAU xX
COLISTRO xX xX
He RDNER xX
KEPPHEI xX X
VELDSTEIN x xX
BEATY xX xX
OSTROW x x
BYRD xX
HASKIN Xx xX
MEEHAN xX
LAPOIN! xX
30 bw X xX xX
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAIN TIFES JOLIN HOPKINS AND RUTII
HOPKINS 12
83-A
Plaintiffs’ challenged cxpert witnesses arc:
A. Peter A. Breysse:
Mr. Brevsse will testify in accordance with his
offer of proof previously filed hercin. the deposition exhibits and
testimony. the records and reports of this expert previously
forwarded to the defendants. and the answers to the
intcrrogatorics:
B. Dr. Samuel Milham.
Dr. Milham will testify in accordance with his
offer of proof previously filed herein. the deposition exhibits and
testimony. the records and reports of this cxpert prev iousl\
forwarded to the defendants. and the answers to the
intcrrogatorics:
Cc. Dr. William E. Morton:
Dr. Morton will testify in accordance with his
offer of proof previously filed herein. his deposition exhibits and
testimony. his records and reports previously provided to the
defendant. and the answers to the intcrrogatorics.
D. Dr. Lloyd Cripe
Dr. Cripe will testify in accordance with his offer
of proof previously filed herein. his deposition exhibits and
testimony. his records and reports previously prov ided to
defendants and intcrrogatory answers.
E. Dr. Robert Stanulis
Dr. Stanulis will testify in accordance with his
offer of proof previously filed herein. his deposition exhibits and
testimony. his records and reports and intcrrogatory answer.
F. Dr. Arthur Weins
Dr. Weins will testify in accordance with his offer
of proof previously filed herein. his deposition testimony and
exhibits. his records and reports previously provided to the
defendants and the intcrrogatory answer.
G. Dr. Robert Corlett:
Dr. Corlett will testify as to the care and on-going
treatment of Deborah Guaragna Williams. his deposition
testimony, his records and reports (previously forwarded and
obtained by the defendants. and the answers to intcrrogatorics). (it
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTH
HOPKINS 13
84-A
should be noted that Dr. Corlctt was not challenged on Daubert:
H. Dr. Jean Chapman:
Dr. Chapman will testify as to the care and on-
going treatment of Deborah Guaragna Williams. her deposition
exhibits and testimony. her gencral understanding of the cffect of
these chemicals on the brain. respiratory system and other portions
of the body. the records of this expert previously forwarded and
obtained by the defendants. and the answers to Intcrrogatorics: Dr.
Chapman was not challenged on Daubert issucs:
J Dr. Paula Lantsberger.
Dr. Lantsberger will testify in accordance with
her offer of proof previously filed herein, her depositions exhibits
and testimony. the records of this expert previously obtained and
provided to the defendants and the answers to intcrrogatorics.
J. Greg Charboneau, Ed.D..
Mr. Charboncau will testify in accordance with
his offer of proof previously filed herein. his deposition exhibits
and testimony. his records previously obtained and provided to the
defendants. and the answers to intcrrogatorics. Mr. Charboneau
Was not challenged on Daubert issucs:
K. Dr. Colistro:
Dr. Colistro will testify in accordance with his
deposition testimony. and the answers to intcrrogatorics:
L. Dr. Herdner:
Dr. Herdner will testify in accordance with his
report previously provided to the defendants as part of his role as
an independent medical examiner for the Department of Labor and
Industrics. Dr. Herdner was not challenged on Daubert issues:
M. Dr. Keppel.
Dr. Keppel is the pulmonologist who will testif
that the chemicals used have caused permanent injuries to
Deborah Guaragna Williams and Ruth and John Hopkins. He will
further testify to the degree of such disability, the mechanics. and
the treatment for. said injuries. and in accordance with his
deposition testimony. his records previously provided to the
defendants and the answers to intcrrogatorics. Dr. Keppel has not
been challenged by defendants. His deposition has been taken on
two occasions. i?
EXHIB B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFES JOLIN HOPKINS AND RUTH
HOPKINS 14
85-A
N. Dr. Feldstein:
Dr. Feldstcin is the hcad of occupational medicine
at Kaiscr Permanente in Portland. Oregon. Dr. Feldstcin will
testify as to the treatment of Deborah Guaragna Williams. John
Hopkins. and Ruth Hopkins and her opinion that the inyurics they
suffered to their memorics. and pulmonary system arc compatible
with an cxposure to industrial solvents. in accordance with
deposition exhibits and testimony. the records of this expert
previously provided to the defendants. and the answers to
intcrrogatorics. Dr. Feldstcin has not been challenged on Daubert
ISSUCS.
O. Dr. Beaty
Dr. Beaty will testify in accordance with his offer
of proof previously filed herein. his deposition exhibits and
testimony. the records of this expert previously obtained and
provided to the defendants. and the answers to intcrrogatorics.
Z Dr. Goldstein
Dr. Goldstein will testify in accordance with his
offer of proof previously filed hercin. his deposition cxhibits and
testimony. his records previously provided to the defendants. and
the answers to intcrrogatorics.
Q. L. Joseph Estey:
Mr. Estev will testify in accordance with his offer
of proof previously filed herein. his deposition exhibits and
testimony. the records of this expert. and the answers to
intcrrogatorics.
R. Dr. Ostrow:
Dr. Ostrow is the pulmonologist who will testify
that the chemicals used have caused permanent injuries to
Deborah Guaragna Williams and Ruth and John Hopkins. He will
further testify to the degree of such disability. the mechanics, and
the treatment for. said injurics. Dr. Ostrow has not been
challenged by the defendants. His deposition testimony has been
scheduled. but not taken. His records and reports have been
provided to the defendants.
EXEUBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFVS JOHN HOPKINS AND RUTH
HOPKINS aa
86-A
S. Dr. Byrd:
Dr. Byrd is a pulmonologist who will testify
regarding Ruth Hopkins’ hospitalization for 3-4 days in December.
1988. following her cxposure at the Kaiser Trentwood plant. Dr.
Byrd has been deposed and his records provided to the defendants
and the substance of his knowledge and testimony regarding his
dealings with Ruth Hopkins are known to the defendants. Dr.
Byrd has not been challenged by the defendants.
T. Bill Meehan:
Mr. Mechan is an educator. He will testify as to
school testing and Indian cultural aspects of grades and testimony.
In addition to the above. Plaintiffs will call Diane Nebel.
Dale Haskins. Deborah Lapoint and Bill Mcchan. There is an
offer of proof on file for Ms. Lapoint. These persons qualify as
experts although they are not medical doctors and have not been
challenged by the Defendants pursuant to Daubert.
Vi. SUPPLEMENTS TO OFFERS OF PROOF
Plaintiffs have supplemented the offers of proof for cach
of the persons claimed by Defendants to not mect the Daubert test.
DATED this 7th day of March. 1994.
DAWSON & MEADE
s/
Edward A. Dawson. WSBA 0299]
Attorncy for Plaintiff Carlson and for
all Plaintiffs and Messrs. Schauermann
and Phclan
EXHIBIT B
SUMMARY OF CLAIMS OF INJURY FOR
PLAINTIFFS JOHN HOPKINS AND RUTH
HOPKINS 16
87-A
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of March 1994. truc
copics of an:
Plaintiffs’ Lists Of Claims, Theories of Liability, and Identity
of Experts Who Will Be Called,
was served on:
James B. King COPY HAND DELIVERED
Keefe. King & Bowman
W. 601 Main Suite 1102
Spokane. WA 99201
Attorneys for Defendants General Electric and Kaiser
Aluminum
Joe G. Hollingsworth & BY U.S. MAIL
Katharine R. Latimer
SPRIGGS & HOLLINGSWORTH
1350 "I" Street N.W.. 9th FI.
Washington D.C. 20005
Attorneys for Defendants General Electric and Kaiser
Aluminum
Craig F. Schaucrmann BY U.S. MAIL
SCHAUERMANN & THAYER
1700 East Fourth Plain Blvd.
Vancouver. WA 98661
Co-counsel for Plaintiffs David Schudel, Daniel Glass, Timothy
Schudel, Sandra Schudel, Kathrene Howell, Craig Thompson,
and Deborah Guaragna.
Thomas C. Phelan BY U.S. MAIL
806 Officers’ Row
Vancouver. WA 98661
Attorney for Plaintiffs Hopkins
s/
EXHIB B
SUMMARY OF CLAIMS OF INJURY FOR
PLAIN IFES JOHN HOPKINS AND RUTH
HOPKINS 17
88-A
Marcia M. Meade FILED IN THE
Edward A. Dawson U.S. DISTRICT COURT
Dawson & Meade EASTERN DISTRICT OF WASHINGTON
1300 W. Dean JUN 27 1994
Spokane. WA 99201-2090 JAMES R. LARSEN. CLERK
(509) 328-4266 DEPUTY
Craig F. Schaucrmann
Schaucrmann & Thayer
1700 E. Fourth Plan Blvd.
Vancouver. WA 98661
(206) 695-4244
Thomas C. Phelan
806 Officcrs Row
Vancouvcr. WA 9866]
(206) 750-8750
Attorneys for Plaintiffs
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL: DANIEL ) NO. CS-92-0081-FVS
GLASS: MERLIN E. CARLSON: _ )
TIMOTHY SCHUDEL and )
SANDRA SCHUDEL. husband ) PLAINTIFFS’
and wife. and the marital ) MEMORANDUM ON
community composed thercof: ) POTENTIAL
KATHRENE RAE HOWELL: ) INSTRUCTIONAL
CRAIG A. THOMPSON: ) ERROR BY
DEBORAH GUARAGNA: and ) ATTEMPTING TO
JOHN and RUTH HOPKINS. ) DEFINE AREA OF
husband and wife. and the marital ) INJURY
community composed thercof. )
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY F¢ IR PLAINTIFFS
WILLIAMS. FROESE. GLASS. SCHUDI LAS).
THOMPSON. AND SANDY SCHUDEL 1
89-A
Plaintiffs.
GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM
CORPORATION. a forcign
corporation.
Defendants.
PLAINTIFFS' POSITION
It is Plaintiffs’ position it would be crror to instruct on the
individual injury contentions of the Plaintiffs. Further. it is
Plaintiffs position it would be crror to require specific findings of
fact on the arca of individual injury for individual Plaintiffs
LAW
Throughout this litigation the Defendants have attempted
to blur the law as it relates to admissibility of evidence and the
burden of proof. It is anticipated the Defendants will likewise
attempt to blur the distinction between admissibility of evidence
with the establishment of a prima facic case sufficient to support
an instruction as to the clements of damage.
The basic issuc is whether Plaintiffs have prima facic evidence
of injury to the body/mind of cach Plaintiff. Plaintiffs have
introduced evidence of such injury. (Sec appendix A to this
memorandum.) Defendants’ usual response is to sav the evidence
is insufficicnt to Ict the issuc go to the jury. Plaintiffs have
previously addressed to the Court that challenges to such evidence
goes to weight and not admissibility.
For cxamplc. a jury can weigh the credentials of Dr.
Lantsberger against thosc of Dr. Bruya as to pulmonary injurics.
Plaintiffs arc entitled to have the individual place whatever weight
he or she chooses on the education. knowledge. experience and
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS. SCHUDEI(S).
THOMPSON. AND SANDY SCHUDEL = 2
90-A
skill of these witnesses. An individual juror may choose to place
all the weight on the credentials of a witness: while another juror
may choose to place equal weight on credentials and sources of
information considered. Under the law. cither method of weighing
the evidence is acceptable. All the law requires the Jurors to do is
to discuss and consider all evidence before reaching a decision.
Sce Court's Proposed Instruction nos. 35 and 33
Under Court's Instruction nos. 33 and 35 one juror may
individually determine one Plaintiff has emotional suffering from
exclusively a psychological stand point. Another juror may
individually determine the same Plaintiff has cmotional suffering
duc to a psychological reaction to a physical problem. After
discussion and consideration. all the law requircs the jury to do is
to agree on whether that Plaintiff was injured by the cxposure to
toxic chemicals at the 1988 PCB cleanup. A jury is not required
to agree that the injury occurred in a certain manner or that the
injury was all psychological or a combination of
psy chological/phvsical factors.
A similar analysis could be performed on the question of
memory loss. Some of the jurors may belicve a Plaintiff's memory
loss ts duc to a brain injury. Other jurors may belicve the memory
loss is duc to depression over being physically limited by pain and
respiratory problems. All the jurors have to agree on is that the
Plaintiff was injured. The jurors are not required to agrcce as to
the injury being solely psychological. physical or both.
Individual injury contentions should not be listed in the
instructions or in the special verdict form. A listing of the health
contentions would misicad the jury as to its function and
responsibilitics under the law. cf State v. Haves. 73 Wn.2d 568.
572. 439 P.2d 978 (1968). The jury's responsibility is to find
duty. breach and damages. "The test in this situation is not a
matter of semantics. but whether the jury was mislcad as to its
function and responsibilitics under the law." Id.. 572. Plaintiffs’
Proposed instructions nos. 49. 50. 51 arc correct statements of the
law.! Under the law, it is the Jury's responsibility to determine
' Plamtif¥s understand that these Instructions need to be modified to reflect
Which Plamtitls are recoving for which elements of damages. Tor example
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESKE. GLASS. SCHUDEL(S).
IHOMPSON. AND SANDY SCHUDEL = 3
91-A
whether Plaintiffs have proven that cach individual Plaintiff was
injured. It is not the jury's responsibility to make a factual finding
as to whether the injurics were psychological or physiological.
Likewise it is not the jury's responsibility to determine whether a
memory loss is from brain injury or depression. It 1s the jury's
responsibility to determine whether a Plaintiff's memory loss.
pulmonary complaints. depression. ctc.. was probably caused by
the negligent exposure to chemicals in 1988 during the PCB clcan-
up
Respectfully submitted this 26th day of Junc. 1994
DAWSON & MEADE
s/
Marcia M. Meade. WSBA #11122
Attorney for Plaintiff Carlson
SCHAUERMANN & THAYER
s/
Craig F. Schauermann, WSBA #7396
Attorney for Plaintiffs Schudcl.
Glass. Howell. Thompson and
Guaragna
THOMAS C. PHELAN
s/ 7
Thomas C. Phelan. WSBA #11373
Attorney for Plaintiffs Hopkins
Craig Thompson does not have a claim for caming capacity loss
EXHIBIT C
SUMMARY OF CLAIMS-OF INJURY FOR PLAIN TIFES
WILLIAMS. FROESI. GLASS, SCHUDETAS).
MIOMPSON. AND SANDY SCHUDEI 4
92-A
CERTIFICATE OF SERVICE
| hereby certify that on this 26th dav of Junc. 1994. truc
copics of
Plaintiffs’ Memorandum on Potential Instructional Error by
Attempting to Define Area of Injury
Was served on the following
James B King HAND DELIVERED
Keefe. King & Bowman
1102 Washington Mutual Building
W 601 Riverside
Spokane. WA 9920)
Attorney for Defendants General Electric and Kaiser
Aluminum
Joc G. Hollingsworth & HAND DELIVERED
Katharine R. Latimer
Spriggs & Hollingsworth
1350 "I" St. N.W.. 9th Floor
Washington D.C. 20005
Attorneys for Defendants General Electric and Kaiser
Aluminum
S/Marcia M_ Meade _
PXIIBIL ¢
SUMMARY OL CLAIMS OF INJURY FOR PLAINTIFES
WILLIAMS. FROESE. GLASS. SCHUDEL(S)
HHOMPSON, ANID SANDY SCHUDE]
93-A
INSTRUCTION NO. 28
It 1s a duty of the Court to instruct you as to the measure
of damages in regard to the following plaintiffs:
Timothy Schudcl. and
Sandra Schudel. husband and wife.
John Hopkins, and
Ruth Hopkins. husband and wifc
By instructing vou on damages. the court docs not mean
to suggest for which party vour verdict should be rendered
If vour verdict is for a particular plaintiff, then you must
determine the amount of money which will reasonably and fairly
compensate that plaintiff for such damages as you find were
proximately caused by the fault of defendants
As to the plaintiffs. Timothy Schudcl. John Hopkins. and
Ruth Hopkins. vou should consider all of the following past
cconomic damages clements
The rcasonable valuc of necessary medical care.
treatment and services received to the present
time,
2 The reasonable valuc of carnings. salarics and
carning opportunitics lost to the present time. and
The reasonable valuc of necessary houschold
services. other than medical. required to the
present time
In addition. vou should consider the following future
cconomuc damages clements
The rcasonable valuc of necessary medical care.
trcatment, and scrvices which with reasonable
probability will be required in the future:
2 The reasonable valuc of carning capacity and
emplovment opportunitics which with reasonable
probability will be lost in the future. and
3 The reasonable valuc of necessary houschold
services and expenses which with reasonable
probability will be required in the future
In addition. you should consider the following non-cconomic
damages clements for Tim Schudcl. John Hopkins. and Ruth
Hopkins
‘sd
PXIIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS, SCHUDELA(S),
HHOMPSON, AND SANDY SCHUDE! ]
94-A
I. The nature and extent of the injurics:
+ The disability and loss of enjoyment of life
experienced and which with reasonable
probability will be experienced in the
future: and
3. The mental. physical. and emotional pain and
suffering experienced. and which with reasonable
probability. will be experienced in the future.
If you find for the plaintiff. Timothy Schudcel, you should also
consider the following clements of damage to his wife. Sandra
Schudel. In the law. these elements of damage are called loss of
consortium.
;. The reasonable value of the loss of the spouse s
love. companionship. comfort. affection. socicty.
solace or moral support lost or with reasonable
probability to be lost in the future:
The reasonable valuc of loss of physical
assistance in the operation and maintenance of
the home lost or with reasonable probability
to be lost in the future:
3. The reasonable valuc of loss of cnjovment of
scxual relations suffered both in the past and
with reasonable probability to be suffered in
the future.
Similarly as to the plaintiffs John Hopkins and Ruth
Hopkins. if you find for cither or both of them. vou should
consider the same clements of loss of consortium.
The burden of proving damages rests with the party
claiming them. and it is for you to determine whether any
particular element has been
proved by a prepondcrance of the evidence.
The law has not furnished us with any fixed standards by
Which to measure pain. suffcring. loss of cnjovment of life. or
disability. With reference to thesc matters. you must be governed
by vour own judgment. by the evidence in the case. and by these
instructions. |
Nm
EXIUBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS. SCHUDEL(S).
THOMPSON. AND SANDY SCHUDEL 2
95-A
INSTRUCTION NO. 29
It is a duty of the Court to instruct vou as to the measure
of damages in regard to the following plaintiffs:
Merlin Carlson.
Danicl Glass.
Deborah Guaragna Williams
Kathrene Froese. and
David Schudcl.
By instructing vou on damages. the court docs not mean
to suggest for which party vour verdict should be rendered.
If vour verdict is for a particular plaintiff, then you must
determine the amount of money which will reasonably and fairly
compensate that plaintiff for such damages as vou find were
proximatcly caused by the fault of defendants.
As to the plaintiffs Merlin Carlson. Daniel Glass.
Deborah Guaragna Williams. Kathrene Froese. and David
Schudcl. vou should consider all of the following past cconomic
damages clements:
1. The reasonable valuc of necessary medical care.
trcatment and services received to the present time:
2. The reasonable valuc of carnings. salarics and
carning opportunitics lost to the present time: and
3. The reasonable valuc of necessary houschold
services. other than medical. required to the
present timc.
In addition. vou should consider the following future
cconomic damages clements:
1. The reasonable value of necessary medical care.
trcatment. and services which with rcasonable
probability will be required in the future:
2. The reasonable valuc of carning capacity and
cmplovment opportunitics which with reasonable
probability will be lost in the future: and
3. The reasonable valuc of necessary houschold
services and expenses which with reasonable
probability will be required in the future.
In addition. you should consider the following
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS, FROESI:. GLASS, SCHUDEI(S).
THOMPSON, AND SANDY SCHUDEL = 3
|
96-A
non-cconomic damages clements:
I. The nature and extent of the injurics:
2. The disability and loss of enjoyment of
life experienced and which with reasonable probability will be
experienced in the future: and
3. The mental. physical. and emotional pain and
_suffering experienced. and which with reasonable probability. will
be experienced in the future.
The burden of proving damages rests with the party
claiming them. and it is for you to determine whether any
particular clement has been proved by a preponderance of the
cvidence.
The law has not furnished us with any fixed standards by
which to measure pain. suffering. loss of enjovment of life. or
disability. With reference to these matters. vou must be governed
by vour own judgment. by the evidence in the case. and by these
instructions
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS. SCHUDEL(S).
THOMPSON, AND SANDY SCHUDET. 4
97-A
INSTRUCTION NO. 31
You arc instructed that lost carnings are different from a
loss of future capacity to carn.
Impairment to the plaintiff's future carning capacity is
established when a plaintiff proves that onc or both of the
defendants caused an injury which lessens or reduces his or her
future money- making facultics or income potential.
In determining any future impairment to the Plaintiff s
carning capacity. vou should consider age: the nature of the
injurics. plaintiff's work capabilitics in the future compared to his
or her capability before the occurrence. If the plaintiff proves that
once or both of the defendants caused his or her injury. and the
plaintiff proves that he or she ts unable to work as well as that
plaintiff could before the injury. that plaintiff is entitled to
compensation for impairment of his or her carning capacity
Pe XHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS. SCHUDEL(S).
HHOMPSON. AND SANDY SCHUDE] 5
98-A
INSTRUCTION NO. 32
According to the mortality tables. the average cxpectancy
of life of cach of the Plaintiffs is as follows:
DATE OF LIFE
NAME BIRTH EXPECTANCY
Merlin Carlson (09/04/65 45 ycars
Danicl Glass 12/09/60 4() vcars
Kathrene Howcll Froese (3/08/56 40 vcars
Deborah Guaragna-Williams — 08/23/61 46 vears
Ruth Hopkins 05/24/45 32 vears
John Hopkins 11/19/46 28 vcars
Craig Thompson 10/02/62 42 vcars
David Schudel (5/19/62 42 vcars
Timothy Schudel 03/15/60 40 vcars
This one factor is not controlling. but is to be considered
m connection with all of the other evidence bearing on the same
question. such as that pertaining to the health. habits. and
activitics of the person whose life expectancy is in question
INSTRUCTION NO. 33
If you find that before this occurrence a plaintiff had a
pre-existing bodily condition which made the plaintiff morc
subject to injury than a person in normal health. then vou should
consider all injurics and damages which were proximatcly caused
by the occurrence. even though those injuries. duc to that
condition. may have been greater than those which would have
been suffered by normal person under the same circumstances.
There may be no recovery. however. for any results which would
have normally followed from the pre-cxisting conditions had there
been no occurrence.
INSTRUCTION NO. 34
If vou find for more than onc plaintiff. vou should assess
the damages of cach scparatcly.
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS. SCTII IEIAS).
THOMPSON. AND SANDY SCHUDEL — 6
99-A
James B. King FILED IN THE
Keefe, King & Bowman. P.S. U.S. DISTRICT COURT
Attorneys at Law. EASTERN DISTRICT OF
W. 601 Main Avenuc, #1102 WASHINGTON
Spokanc. WA 9920] JUL 27 1994
509/624-8988 JAMES R. LARSEN.
CLERK ___—_—sd&DEPUTY
Joc G. Hollingsworth
Spriggs & Hollingsworth
1350 1 Street. NW. Ninth Fir
Washington. DC 20005
212/898-5842
Attorneys for Defendant Gencral Electric Co.
and Kaiser Aluminum and Chemical Corp.
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 thercof, ) NO. CS-92-0081-FVS
KATHRENE RAE HOWELL: )
CRAIG A. THOMPSON: )
DEBORAH GUARAGNA: and ) DEFENDANTS”
JOHN and RUTH HOPKINS. ) MOTION FOR
husband and wifc. and the marital ) JUDGMENT AS A
community composed thercof. ) MATTER OF LAW
)
Plaintiffs. )
V ) (FED.R.CIV.P. 50 (B))
)
GENERAL ELECTRIC )
COMPANY. a forcign corporation: __)
and KAISER ALUMINUM )
CORPORATION. a foreign )
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS, SCHUDELA(S).
THOMPSON. AND SANDY SCHUDEL — 1
100-A
corporation, )
)
___Defendants. ) :
Pursuant to Fed. R. Civ. P. 50(b). defendants the Gencral
Electric Company (“General Electric”) and Kaiser Aluminum
Corporation (“Kaiser”) renew their motion for judgment as a
matter of law against cach plaintiff
In support of this Motion. Defendants refer the Court to
the accompany ing Memorandum In Support of Renewed Motion
for Judgment as a Matter of Law (Fed. R. Civ. P 5(0(b)).
DATED this 27th day of July, 1994
KEEFE, KING & BOWMAN. PS
By s/_ oie ae
JAMES B. KING _
WSBA No. 8723
SPRIGGS & HOLLINGSWORTH
By s/
JOE G. HOLLINGSWORTH
Attorneys for Defendants
General Electric Company and
Kaiser Aluminum and Chemical Corp
EXHIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS. FROESE. GLASS, SCHUDEL(S).
IHOMPSON, ANI) SANDY SCHUDE] 2
JAMES B. KING FILED IN THE
KEEFE. KING & BOWMAN. PS. U.S. DISTRICT COURT
Attorneys at Law EASTERN DISTRICT OF
W. 601 Main Avenuc. #1102 WASHINGTON
Spokane. WA 99201 JUL 27 1994
§()9/624-8988 DEPUTY
JOE G. HOLLINGSWORTH
SPRIGGS & HOLLINGSWORTH
1350 1 Street. NW. Ninth Fir
Washington. DC 20005
202/898-5842
Attomeys for Defendant General Electric Co
and Kaiser Aluminum and Chemical Corp
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 thercof: ) NO. CS-92-0081-FVS
KATHRENE RAE HOWELL: )
CRAIG A. THOMPSON. )
DEBORAH GUARAGNA.: and ) DEFENDANTS”
JOHN and RUTH HOPKINS. ) MOTION FOR
husband and wife. and the marital ) NEW TRIAL OR
community composed thercof. ) ALTERNATIVE
) RELIEF
Plaintiffs. ) (FED.R.CIV.P. 59)
)
)
)
)
\
GENERAL ELECTRIC
COMPANY. a forcign corporation.
EXIIBIT C
SUMMARY OF CLAIMS OF INJURY FOR PLAINTIFFS
WILLIAMS, FROESIT. GLASS, SCHUDEL(S)
PHOMPSON. AND SANDY SCHUDEI ]
and KAISER ALUMINUM
CORPORATION. a forcign
corporation,
Defendants
102-A
— eee eee
)
Pursuant to Fed. R. Civ. P. 59, and as an alternative to
judgement as a matter of law under Fed. R Civ. P SO(b).
defendants the General Electric C ompany and Kaiser Aluminum
Corporation move for a new trial or alternative relicf
In support of this Motion, Defendants refer the Court to
the accompany ing Memorandum In Support of Motion for New
Prial or Alternative Relief (Fed. R. Civ. P. $9)
DATED this 27 day of July, 1994
KEEFE. KING & BOWMAN. PS
wy a a
JAMES B. KING
WSBA No. 8723
SPRIGGS & HOLLINGSWORTH
By s/_
JOE G. HOLLINGSWORTH
Attorneys for Defendants
General Electric Company and
Kaiscr Aluminum and Chemical Corp
EXHIB C
SUMMARY OF CLAIMS OF INJURY FOR PLAIN Hrs
WILLIAMS. FROESE. GLASS. SCHUDI 14S).
IHOMPSON. AND SANDY SCHUDEI
103-A
Marcia M. Meade FILED IN THI
Edward A. Dawson US DISTRICT COURT
Dawson & Mcade EASTERN DISTRICT OF WASHINGTON
1300 W. Dean DEC 09 1994
Spokane. WA 99201-2090 JAMES R-LARSEN. CLERK
(S09) 328-4266 DEPUTY
Craig F. Schaucrmann
Schauermann & Thaver
1700 E. Fourth Plan Bivd
Vancouver. WA 98661
(206) 695-4244
Thomas C. Phelan
806 Officers Row
Vancouver. WA 98661
(206) 750-8750
Attorneys for Plaintiffs
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL: DANIEL ) NO. CS-92-0081-FVS
GLASS: MERLIN E. CARLSON: |)
TIMOTHY SCHUDEL and )
SANDRA SCHUDEL, husband ) MOTION THAT THE
and wife, and the marital ) ORDER OF
community composed thereof. ) NOVEMBER 25.
KATHRENE RAE HOWELL: ) 1994.18 A FINAL
CRAIG A. THOMPSON: ) DECISION AND
DEBORAH GUARAGNA.: and ) THERE IS NO JUST
JOHN and RUTH HOPKINS. ) REASON FOR
husband and wife. and the marital ) DELAY
community composed thereof. )
)
)
Plaintiffs.
—
104-A
\
GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM
CORPORATION. a foreign
corporation.
Defendants
COMES NOW the Plaintiffs and move the Court for a
finding pursuant FRCP $4 that the order of November 25.
1994 is a final decision and there is no just reason for
delay. This motion is based upon the files and records
herein and the attached Affidavit
DATED this 9th dav of December. 1994
DAWSON & MEADE
S
Edward A. Dawson.
Attorney for Plaintiff Carlson
SCHAUERMANN & THAYER
S/
Signed with authority for
Craig F. Schauermann. WSBA #7396
Attorney for Plaintiffs Schudel.
Glass. Howell. Thompson &
Guaragna
S/
Signed with authority for:
Thomas C. Phelan, | 1373
Attorncy for Plaintiffs Hopkins
+
—
105-A
CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of December. 1994.
truc copics of the
Motion That The Order Of November 25. 1994. Is A
Final Decision And There Is No Just Reason For
Delay:
Affidavit of Edward A. Dawson: and
Plaintiff Notice of Hearing.
was scrved on the following
James B. King HAND DELIVERED
Keefe. King & Bowman
1102 Washington Mutual Building
W. 601 Riverside
Spokane. WA 99201
Attorney for Defendants General Electric and Kaiser
Aluminum
Joc G. Hollingsworth & U.S. MAIL
Katharine R. Latimer
Spriggs & Hollingsworth
1350 "I" St... N.\W.. 9th Floor
Washington D.C. 20005
Attorneys for Defendants General Electric and Kaiser
Aluminum
S/
Tonya Wylie
>
s |
106-A
Marcia M Meade MED IN TH
Edward A. Dawson US DISTRICT COURT
Dawson & Meade LASTERN DISTRICT OF WASITINGTON
1300 W) Dean DFC 29 1994
Spokane. WA 99201-2090 HAMIS R LARSEN. CLERK
(S09) 328-4266 DEPUTY
Craig Fo Schaucrmann
Schaucrmann & Thaver
1700 E Fourth Plan Blyd
Vancouver. WA 9866]
(206) 695-4244
Ihomas C Phelan
Attorney at Law
806 Officers Row
Vancouver. WA 9866)
(206) 780-8750
Attorneys for Plaintiffs
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL. DANIEL NO. CS-92-0081-FVS
GLASS. MERLIN E. CARLSON.
TIMOTHY SCHUDEL and
SANDRA SCHUDEL. husband
and wife. and the marital
community composed thereof. OPPOSITION TO
KATHRENE RAE HOWELL. FRCP 54(b)
)
)
)
) PLAINTIFFS' REPLY
)
)
)
CRAIG A_ THOMPSON. ) LANGUAGE
)
)
)
)
)
)
TO DEFENDANTS’
DEBORAH GUARAGNA. and
JOHN and RUTH HOPKINS.
husband and wife. and the marital
community composed thereof.
Plaintiffs.
EEE
j
107-A
GENERAL ELECTRIC
COMPANY. a forcign corporation.
and KAISER ALUMINUM
CORPORATION. a foreign
corporation.
Defendants
PERTINENT FACTS TO FRCP S4(B)
When this action was filed. it was filed as a negligence
claim for all of the Plaintuff-Workers. On February 28. 1994 the
Court ordered the Plaintiffs to
(a) list cach claim against the Defendants. including all
theories of liability. or causation © ? In complying with the
Court's Order. the Plaintiffs did on March 7. 1994°. file with the
Court a listing that all Plaintiffs were making a claim for
negligence. Thereafter. the Plaintiffs listed approximately 12
theories of hability for negligence In that pleading. the Plaintiffs
listed over 10 pages their theorics of causation as to the Plaintiffs’
myurics arising out of negligence *
At the time of instructing the jury. the Court asked that
the Plaintiffs provide a list of the damages contended by the
Plaintiffs. The Plaimtiffs provided the Court with lists for cach
Plaintiff * The Plaintiffs also filed with the Court a
Memorandum addressing their exceptions to the placing of factual
contentions rather than the legal damage clements in the jury's
instructions.“
Neither General Electric nor Kaiser Aluminum ever
presented the Court with a request for a special verdict form as to
the individual damages for cach Plaintiff. Nor did Defendants.
under FRCP 49a). request special intcrrogatorics as to factual
2See the Court Order of February 28, 1994 p. 7 16-17
‘See Plants’ Lists of Clams, Theones of Liability, and Identity ol E:Nperts
Who Will Be Called, said pleading also contamed causation theones
4 See lootnate 2 supra at p 4 through 10
*See the Affidavit of Marcia M. Meade on Responding to Opposition to FRCP
4b) Findings
( , .
‘See Plamtills’ Memorandum on Potential Instructional Error by Attempting
to Define Area of Injury
2
108-A
contentions. Plaintiffs understood under F RCP 4%(a) it was
General Electric's or Kaiser Aluminum's burden to request such a
special interrogatory.
More than four months after the judgment on the verdict.
the District Court has granted a new trial sua sponte because of an
alleged instructional crrors.
Plaintiffs have contended the District Court did not have
Jurisdiction to decide post-trial motions. because the motions were
not timely served
SHORT ANSWER
There are five basis for finding that the Order for a New
Trial are final. The basis are
|. There ts a challenge as to the trial court's Jurisdiction
to hear post-trial motions:
2. Four months after the entry of the judgment on the
verdict. the trial court sua sponte granted a new tral because of
alleged crrors i instructions to the Jury:
3. The Defendants have waived any right to challenge the
gencral verdict for failure to request special intcrrogatorics under
FRCP 4%):
4. There is but one claim by the Plaintiffs that is
neghwence: and
5. By looking at the substantial effect of the new trial in
light of the other rulings which are appcalable as a matter of right.
it should be found that the New Trial Order is final under the
auspices of FRCP 54(b).
Should the Plaintiffs prevail on any one of the matters
above. a question of a new trial will be moot. For the original
verdict will be reinstated as to all of these Plaintiffs. thereby
making a second trial unnecessary.
LA
_
Plaintiffs’ "Complaint" and position throughout the
pendency of this litigation has been that there has been a
negligence claim for cach Plaintiff-Worker Under Washington
law the essential clements of an actionable claim for negligence
arc. "(1) the existence of a duty owed to the complaining party: (2)
BP bain ¥,
109-A
a breach thereof. (3) a resulting injury; and (4) a proximate cause
between the claimed breach and the resulting injury." Pedroza vy.
Bryant. 101 Wn.2d 226, 228, 677 P.2d 166 (1984). Throughout
this litigation Defendants have persisted in dcnominating an
clement of a negligence claim as a separate claim. Yet. under
Washington law an injury standing alone is mercly an clement of a
claim of negligence. Each injury to a part of a body is not a
scparate claim. but rather a factual basis of one clement of
negligence
In attempting to support their position that the order for a
new trial is not final. Defendants cite Eaton vy. National Steel
Products. 624 F.2d 863 (1980). Eaton noted that an order for a
new trial 1s considered final. when at 864
Though an exception to this rule has been
recognized when the District Court grants a new
trial when it has no jurisdiction to do so
Plaintiffs have contended the trial court did not and does not have
jurisdiction to hear FRCP 50(b) and 59 motions. As carly as
186. the United States Supreme Court has recognized that when
an order granting a new trial. which normally would be
intcrlocutory. 1s treated as an appealable final order. when there 1s
a challenge to jurisdiction. Sce Phillips v. Negley. 117 U.S. 665.
6S.Ct. 901, 29 L-Ed. 1013 (1886). Also see Stradley v. Cortez
S18 F.2d 488. 49] (1975).
At trial neither General Electric nor Kaiser Aluminum
objccted to the Verdict Form and intcrrogatorics as finall\
propounded to the jury. Neither General Electric nor Kaiser
Aluminum proposed special interrogatories under FRCP 49(a).
The failure to request a special verdict form as to cach factual
thcory in a case results in a failure to present appropriate records
for review for challenge of sufficiency of evidence to support the
Plaintiffs’ claim as to damage. McCord v. McGuire. 873 F.2d
1271, 1274 (9th Cir. 1989). Under FRCP 49 (a) it was
Defendants’ burden to propose special intcrrogatorics on damages
In post-trial rulings the trial court sua sponte proposed
that special interrogatories identifying the bodily damages
individually. These sua sponte rulings on alleged instructional
errors occurred more than four months aftcr the judgment on the
110-A
verdict. In a similar situation, Peterman v_ Chicago. Rock Island
and Pacific Railroad Co.. 493 F.2d 88 (8th Cir 1974). the District
Court considered whether the jury had been adequately instructed
on the proximate cause of injuries. The Peterman Court held that
the District Court lacked any power to Sua sponte grant a new trial
because of any alleged crror in the instructions to the jury
Peterman at 91
Many of the authorities cited by the Defendants are
situations in which there have been summan Judgment
proceedings dismissing portions of the party's claims. The present
case occurred after a trial. In those circumstances where the court
has held that the granting of a new trial is not an appealable order.
there are other circumstances that are considered at those times
Those circumstances consider whether there has been a motion for
aremittitur In the present case there was no motion for a
remittitur There are case where the court has found the damages
awarded to the Plaintiff are inadequate. Here. the Defendants
have suggested that there be no damages at all. Neither
Defendants or Plaintiffs have placed the present jury verdicts at
issuc Should the Plaintiffs prevail on appeal. there will be no
need for a further trial
In Tagupa v_East-West Center, Inc.. 642 F 2d 1127 (9th 7
Cir 1980). the question of appealability of interlocutory orders
was considered There the Court advised "we look to the
substantial cffect rather than its terminology." Id at 1129 The
substantial cffect of what the Court has ordered. if it is not treated
as a final order. could result in three more trials. rather than at
most two morc trials. If this is found to be a final order for
purposes of appealability. then the most that would occur would
be two more trials. There is a high likelihood. given the
jurisdictional issues on service of the post-trial motions. and the
Sua sponte rulings. that this matter will be disposed of with the
original trial
5
111-A
i bt nk ees Mees
CONCLUSION
In the interest of judicial economw and in the interest of
the practical economics of all the partics involved. this should be
treated as a final order
Respectfully submitted this 28th day of December. 1994
DAWSON & MEADE
_ ae
Marcia M. Meade. WSBA #11122
Attorney for Plaintiff Carlson
and on behalf of Craig F
Schaucrmann and Thomas Phelan
for their respective clicnts
ius 112-A
CERTIFICATE OF SERVICE
Thereby certify that on this 28th dav of December. 1994.
truce copics of
Plaintiffs’ Reply to Defendants' Opposition to FRCP 54(b)
Language
Was served on the following
James B King U.S. MAIL
Keefe. King & Bowman
1102 Washington Mutual Building
W 601 Riverside
Spokane. WA 9920]
Attorney for Defendants General Electric and Kaiser
Aluminum
Joe G. Hollingsworth & U.S. MAIL
Katharine R. Latimer
Spriggs & Hollingsworth
1350 "I" St. N.W.. 9th Floor
Washington D.C. 20005
Attorneys for Defendants General Electric and Kaiser
Aluminum
s/Marcia M. Meade
Marcia M. Meade FILED IN THI
Edward A. Dawson US. DISTRICT COURT
Dawson & Meade LASTERN DISTRICT OF WASHINGTON
1300 W. Dean DEC 28 1994
Spokane. WA 99201-2090 IAMES ROP ARSEN. CLERK
(S09) 328-4266 DEPUTY
Cra Fo Schauermann
Schaucrmann & Thaver
1700 E. Fourth Plan Blyd
Vancouver. WA 98661
(206) 695-4244
Thomas C. Phelan
806 Officers Row
Vancouver, WA 9866!
(206) 750-8750
Attormeys for Piaintiffs
The Honorable Fred Van Sickle ~
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL: DANIEL NO. CS-92-0081-FVS
GLASS: MERLIN E. CARLSON.
TIMOTHY SCHUDEL and
SANDRA SCHUDEL. husband
and wife, and the marital
community composed thercof.
KATHRENE RAE HOWELL:
AFFIDAVIT OF
MARCIA M. MEADE
IN RESPONSE TO
DEFENDANTS:
DEBORAH GUARAGNA.: and
JOHN and RUTH HOPKINS.
husband and wife. and the marital
community composed thereof.
THE FRCP 54(b)
LANGUAGE
)
)
)
)
)
)
)
CRAIG A. THOMPSON. ) OPPOSITION TO
)
)
)
)
)
)
Plaintiffs.
114-A
GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM
CORPORATION. a forcign
corporation,
Defendants
STATE OF WASHINGTON _ )
).Ss
County of Spokane )
Marcia M. Meade. being first duly sworn on oath,
deposes and says
|. 1am counsel of record. The following documents are
pertinent to Defendants’ opposition to the Court finding this to be
a final decision as to all of the Plaintiffs under FRCP $4(b)
2. On February 28. 1994. the Court ordered Plaintiffs "it
Is hereby ordered) 1. By March 7, 1994. the Plaintiffs shall do the
following, (a) list cach claim against the Defendants. including all
theorics of lability or causation.. (emphasis added)
3. In complying with that Order. the Plaintiffs filed with
the Court a 19 page pleading entitled "Plaintiffs' List of Claims.
Theorics of Liability. and Identity of Experts Who Will Be
Called" on March 7. 1994. This pleading also listed Plaintiffs’
theorics of causation.
4. The above document listed that the Plaintiffs were
making a claim as to negligence. There were approximately 12
different theories of the claim of negligence. Thereafter. for ten
pages the Plaintiffs identified their theories of proximate cause.
5. The Plaintiffs also identified that they filed extensive
offers of proof as to the witnesses. who would be testifving on the
issucs of causation as it related to the Plaintiff-Workers. .
6. At the time of jury instructions. the Court asked the
Plaintiffs to provide it with a list of what cach Plaintiff was
contending their damages to be.
7. The Plaintiffs did provide to the Court responses to
cach See attached Exhibits A, B. and C_ Plaintiffs counscl also
identificd in memorandum their exception and authoritics as to it
2
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115-A
being crror to instruct on individual factual components of
damages
8. At all times Plaintiffs have identified their negligence
claim as they understood Washington's CR &(a) and FRCP &(a)
have denominated a claim to be
9. Affiant has always understood the law to be that
damages are an clement of a claim. Further that a damage
clement. alone. docs not constitute a claim
s/ _
Marcia M. Meade
SUBSCRIBED AND SWORN to before me this 28 day
of December. 1994
s/ Lisa Keller
NOTARY PUBLIC tn and for the State
of Washington residing in Spokane
Commission Expires) 6/28/98
116-A
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of December, 1994.
truc copies of
Affidavit of Marcia M. Meade in Response to Defendants’
Opposition To The FRCP S4(b) Language
Was served on the following
James B. King U.S. MAIL
Keefe. King & Bowman
1102 Washington Mutual Building
W 601 Riverside
Spokane. WA 9920]
Attorney for Defendants General Electric and Kaiser
Aluminum ~
Joe G. Hollingsworth & U.S. MAIL
Katharine R. Latimer
Spriggs & Hollingsworth
1350 "I" St. NW... 9th Floor
Washington D.C. 20005
Attorneys for Defendants General Electric and Kaiser
Aluminum
S/ Marcia M. Meade
Re tat A a eg
IRI TY RENE i pm Sg SBT 0
lA nae 4) gna
Marcia M. Meade
DAWSON & MEADE
1300 W. Dean
Spokane. WA 99201-2090
(S09) 328%-4266
Attomevys for Plaintiffs
Thomas C. Phelan
Attorney at Law
806 Officer's Row
Vancouver. WA 9866]
Craig F. Schauermann
SCHAUERMANN & THAYER
1700 E. Fourth Plain Blvd
Vancouver. WA 9866]
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL. ct. al. ct )
uN. )
Plaintiffs. ) NO 92-CS-0081-FVS
\ )
) PLAINTIFFS”
GENERAL ELECTRIC COMPANY. ) CONTENTIONS ON
ct. al ) MERLIN CARLSON
Defendants )
COMES NOW the Plaintiffs and identify for the Court
the contentions as to Merlin Carlson. It is contended that Merlin
Carlson had an injury to his mind and his body at the time of the
exposure. Including the present experience of alternations in
consciousness, rash. breathing difficultics. coughing. headaches.
nausea, vomiting. The injury to his mind and body include the
devclopment of solvent syndrome. toxic enccphalopathy. memory
118-A
loss. concentration difficulties, irritability. mood swings,
depression, injury to his lungs, myury to his personality and
injurics to all of his organ systems which manifested as solvent
syndrome, aggravation of his existent level of cognitive
functioning. aggravation of his lung function, permancnt
respiratory problems, loss of his ability to live independently. loss
of his ability to become medicine man. loss of his ability and
capacity to cnyov life. loss of his ability and capacity to work
mental and physical pain and suffering
DATED this 24 dav of Junc. 1994
DAWSON & MEADI
Ss
Marcia M Meade. WSBA 411122
Attornes for Plaintiff Carlson
119-A
Thomas C. Phelan
Attorneys at Law
806 Officers Row
Vancouver, WA 98661
(206) 750-8750
Attomevs for Plaintiffs Hopkins
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL. ect al. ct ux
Plaintitts No 92-CS-OOR1-VS
GENERAL ELECTRIC COMPANY. a SUMMARY OF
forcign corporation. and KAISER ) CLAIMS OF
ALUMINUM CORPORATION. ) INJURIES FOR
a foreign corporation. ) PLAINTIFFS
JOHN ) HOPKINS AND
)
Defendants RUTH HOPKINS
ee ee ee ee ee ee ee eee ee eee eee eee ee ee eee
JOHN HOPKINS and RUTH HOPRINS. by and through
their attorney of record. Thomas C. Phelan. hereby scts forth their
summary of claims of damages pursuant to Court Order
A JOHN HOPKINS
Past medical expenses.
2 Past. present. and future emotional
distress. pain and suffering duc to
permanent respiratory illness:
Loss of cnjovment of life duc to
permanent respiratory illness. and
4 Loss of spousal consortium
ad
120-A
B RUTH HOPKINS
Past. present. and future medical
expenses:
Past. present, and future psvchiatric
and/or psychological carc and treatment:
3 Past. present. and future pain and
suffcring and cmotional distress duc to
respiratory illness:
Nm
4 Loss of cnjovment of life duc to
respiratory illness:
5 Loss of spousal consortium:
DATED this 24th dav of Junc. 1994
THOMAS C. PHELAN
S
Thomas C. Phelan. WSBA #11373
Attorney for Plaintiffs Hopkins
.
:
3
PUBLISHER’S NOTE:
(HE FOLLOWING PAGE WAS UNAVAILABLE FOR FILMING:
[2/0
122-A
Craig F. Schaucrmann
SCHAUERMANN & THAYER
Attomevys at Law
1700 E. Fourth Plain Blvd.
Vancouver. WA 98661
(206) 695-4244
Attorneys for Plaintiffs Schudcl. Glass. Howell. Thompson &
Guaragna
The Honorable Fred Van Sickle
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
AT SPOKANE
DAVID SCHUDEL. ct al.. ct ux.. )
Plaintiffs. No. 92-CS-0081-VS
VS suleaonts OF
) CLAIMS OF INJURY
GENERAL ELECTRIC. a forcign ) FOR PLAINTIFFS
corporation. and KAISER ALUMINUM ) DEBBIE WILLIAMS.
CORPORATION. a forcign ) KATHY FROESE.
corporation. ) DAN GLASS.
) DAVID SCHUDEL.
Defendants. ) TIM SCHUDEL.
) CRAIG THOMPSON.
) AND SANDY
) SCHUDEL
DEBBIE WILLIAM. KATHY FROESE. DAN GLASS.
DAVID SCHUDEL. TIM SCHUDEL. CRAIG THOMPSON.
and SANDY SCHUDEL., by and through their attorney of record.
Craig F. Schaucrmann, hereby sets forth their summary of claims
of damages pursuant to Court Order
A DEBBIE WILLIAMS: Permanent brain injun
resulting in cognitive deficits. memory problems. loss of IQ.
change in disposition, Organic Personality Syndrome. depression
Pulmonary injurics resulting in sensitivity to fumes. breathing
123-A
problems. increased susceptibility to bronchitis and other upper
respiratory infections, aggravation of pre-existing problems, and
Reactive Airway Discase Syndrome. Rash. dizziness. vomiting.
tiredness. fear. pain and suffering. fethargy. cmotional distress.
medical bills. wage loss. loss of carning capacity. retraining
cxpenses. and loss of the cnjovment of life.
B KATHY FROESE: Pulmonary injurics.
resulting in sensitivity to fumes. breathing problems. increased
susceptibility to bronchitis and other upper respiratory infections.
aggravation of pre-existing problems. Reactive Airway Discase
Syndrome. Memory problems. change in disposition. hcadache
and depression. Kash. dizziness. tiredness. Icthargy. fear. pain
and suffering. emotional distress. medical bills. loss of carning
capacity. and loss of the enjoyment of lifc
C DAN GLASS: Memory loss. past and future
pulmonary problems. including sensitivity to fumes. breathing
problems. aggravation of pre-existing conditions. headache. rash.
tiredness. Icthargy. pain and suffering. irregular heart beat.
emotional distress. fear. medical bills. and loss of the enjovment of
life
D. DAVID SCHUDEL: Memory problems. change
in disposition. depression. pulmonary injuries resulting in
sensitivity to fumes. breathing problems, aggravation of pre-
existing pulmonary dysfunctions. fear. headache. rash. irregular
heartbeat. tiredness. Icthargy. cmotional distress, pain and
suffcring. medical bills. wage loss. retraining expenses. and loss of
the cnjovment of life
E TIMOTHY SCHUDEL: Memory problems.
change in disposition. depression. pulmonary injurics resulting in
sensitivity to fumes. breathing problems. aggravation of pre-
existing condition. fear. hcadache cmotional distress. pain and
suffering. medical bills. rash. dizziness. tiredness. Icthargy. wage
loss. retraining expenses. and loss of the cnjovment of lifc.
124-A
P. CRAIG THOMPSON: Memory problems.
change in disposition, depression. pulmonary injuries resulting in
sensitivity to fumes. breathing problems. aggravation of pre-
existing condition, fear, hcadachc. emotional distress. pain and
suffering. medical bills. rash. dizziness. retraining expenses, and
loss of the cnjovment of life.
G. SANDY SCHUDEL: Sandy Schudel contends
that she has suffered a loss of consortium with her spouse
DATED this 24th day of June. 1994.
SCHAUERMANN & THAYER
s/
Craig F. Schaucrmann. WSBA #7396
Attorney for Plaintiffs Schudcl.
Glass. Howell. Thompson & Guaragna
125-A
DAVID SCHUDEL,; DANIEL
GLASS: MERLIN E. CARLSON:
TIMOTHY L. SCHUDEL and
SANDRA SCHUDEL. husband and
wife and the marital community
composed thercof. KATHRENE
RAE-HOWELL (FROESE). CRAIG
A. THOMPSON. JOHN and RUTH
HOPKINS. husband and wife. and
the marital community composed
thereof,
Plaintiffs-Appellees/
Cross Appellants.
DEBORAH GUARAGNA
(WILLIAMS).
Appellee.
\
GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM AND
CHEMICAL CORPORATION. a
forcign corporation.
Defendants-Appcllants/
__Cross Appellees _
RECEIVED
OFFICE OF THE CLERK
US. COURT OF APPEALS
1998 JAN 31
FILED
DOCKETED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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Nos. 94-36250 /
95-345010
BRIEF IN SUPPORT
OF MOTION TO
DISMISS (WITH
ATTACHMENTS)
es
ro
126-A
The General Electric Company and Kaiser Aluminum and
Chemical Corporation [hercinafter, collectively, “General
Electric "| move to dismiss these cases on the ground that no final
judgment existed at the time the partics noted their appeals. This
Court therefore lacks appellate jurisdiction. Scc Fed. R. App. P.
4:28 USC. § 1291.
INTRODUCTION
The partics’ appeals were taken from the November 25.
1994. Order of the district court which directed, on post-trial
motions filed by General Electric: (1) that judgment be entered as
a matter of law in favor of General Electric on the claims of four
of the ten plaintiffs: (2) that a new trial be held on the claims of
another four of the ten plaintiffs: and (3) that the jury verdict be
upheld as to one plaintiff. Sec CR 571./ The district court Order
failed to address the claims of the tenth plaintiff. See id.
As is clear from this summary. the district court's
November 25 Order did not dispose of all claims of all partics
Gencral Electric thereafter timely moved in the district court.
pursuant to Fed. RS. Civ. P. 60(b) and 59(e¢). to alter or amend or
correct the Order. in part to obtain judgment on the tenth,
unaccounted for, plaintiff. CR 574. 575. General Electric also
moved for certification under Fed. R. Civ. P. 54(b) so that the
partics could appeal appropriate portions of the Order (i.c.. those
portions which fully resolved the claims of any plainuff).8 CR
974.575. All plaintiffs objected to General Electric's Rule $4(b)
proposal. CR 591, 592. 593. and all plaintiffs countered with their
own motion for certification under Rule 54(b). CR 577, 578.
(The Rule 54(b) certification dispute arose because General
Electric sought certification only as to those parties whose claims
7 General Electric previously filed the District Court's November 25,
1994 Order in its entirety in response to plaintif¥-appellants’ motion to dismiss
and motion for remand
® Federal Rule of Civil Procedure 54(b) provides that. In actions
mvolving more than one claim or muluple parties. “the court may direct the
entry of a tinal judgment as to one or more but fewer than all the claims or
Parties only upon an express determination that there 1s no just reason for
delay and upon an express direction for the entry of judgment.”
2
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127-A
were finally resolved. while plaintiffs sought “certification” as to
everyone -- even those against whom judgment was not entered
but who instcad faced a new trial.) In addition. two of the four
plaintiffs who were ordered to submit their claims by way of a
new trial moved for reconsideration or clarification of the Order
pursuant to Fed. Rs. Civ. P. 60 and 59(c). CR 580. 581. While
all of thesc motions were pending, plaintiffs -- excepting the sole
prevailing plaintiff Deborah Williams -- noticed this appeal.
ostensibly pursuant to Fed. R. App. P. 4. CR 584. Asa
protective measurc. Gencral Electric then noticed a cross-appeal.
CR 589. These cross-appcals comprise the present action.
ARGUMENT
| The Appeals Were Taken From A Non-Final
Order Which Adjudicated Fewer Than All Claims
And The Rights Of Fewer Than All Parties
Federal Rule of Appellate Procedure 4(a)(1). read in
conjunction with the jurisdictional provisions of 28 U.S.C. §
1291. requires that the appealing party notice his appeal “within
30 days after the date of the entry of judgment.” Because there
\was no final judgment here. the partics” appeals were not and arc
not ripe for review. E.g.. Frank Briscoc Co. v. Morrison-Knudsen
Co.. 776 F.2d 1414 (9" Cir. 1985) (appeal dismissed in absence
of clear Rule 54(b) findings). Baker vLimber. 647 F.2d 912. 916
(9"" Cir 1981) (final judgment as to onc. but not all. defendants
\was not ripe for appeal absent the express determinations required
by Rule 54(b)): Chacon v. Babcock. 640 F.2d 221. 222 (9"" Cir.
1981) (*|Without a Rule 54(b) certification. orders granting
: partial summary judgment are non-final”): Sanchez vy. Breed. 464
F.2d 448 (9" Cir. 1972) (dismissing appeal where failure to
comply with Rule 54(b)): Atterbury v. Carpenter. 310 F.2d 126
(9"" Cir. 1962) (same). Plainly. the district court's November 25
Order. to which these appcals were directed. was not a final Order
under the federal rules. Accordingly. the appeals arc
jurisdictionally defective.
Piitnaautbilibiinie
a RTS AEA le ht hd tnd SAND TERRES LL
128-A
2. The Premature Appcals Are Not “Saved” By The
District Court’s Recent Rule 54 Certifications
On January 17, 1995, approximately four wecks after
plaintiffs noticed their appeal (and Gencral Electric its protective
cross-appeal). the district court ruled on the parties” motions to
alter or amend or correct the Order and motions for Rule 54
certification. CR 600. The district court directed: (1) that final
judgment be entered as a matter of law in favor of Gencral
Electric on the claims of the tenth plaintiff: (2) that the partics”
varicd requests for altcrnative substantive relicf be denied: (3)
that final judgment be entered and Rule 54 certification issuc for
six plaintiffs: and (4) that no final judgment be cntered for four
plaintiffs. who nevertheless would have the right to appeal the
limited question of the district court's jurisdiction to hear General
Electrics post-trial arguments (citing Eaton v. National Stcel
Products Co.. 624 F.2d 863. 864 (9" Cir. 1980)).2 CR 600,10
On the question of “judgment” as to the latter four. the Court
explicitly held:
In its order. the Court ruled that these four plaintiffs...
could not recover damages for certain (alleged) injurics.
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 Icft their negligence claims
otherwise unresolved pending a new trial. Asa result
insofar as Kathrene Froese, Merlin Carlson, Ruth
Hopkins, and John Hopkins are concerned, the order is not
a final judgment.
Order at 4-5 (emphasis added) (citation omitted).
® ‘The Eaton exception allows the appellate court to review the
authority of the district court in granting a new tnal where ils jurisdiction to do
So 1s challenged. but does not pennit review of the merits of that interlocutory
order. See Eaton v_ National Steel Products Co.. 624 F.2d 863. 864 (9"" Cir.
1980)
'Y General Electric previously filed the District Court's January 17.
1995 Order in its entirety as a Fed. R. App. P. 28()) supplement in response to
plamntifl-appellants” motion to dismiss and motion for remand
4
129-A
All partics -- excepting again Ms. Williams -- noticed
apes from the January 17 Order and final judgment. CR 666,
669.11 These later-filed appeals are the only jurisdictionally
proper means by which to resolve the merits of the final judgment
in this casc. E.g.. Browedcr v. Director, Dep't of Corrections,
434 U.S. 257, 264 (1978) (timely notice of appcal is mandatory
and jurisdictional): Bordallo v. Reyes. 763 F.2d 1098. 1101 (gi
Cir. 1985) (same).
Plaintiff-appcellants may arguc that the premature appcals
were somchow “validated” by the district court's subsequent Rule
S4 certification and related Ordcr. Federal Rule of Appellate
Procedure 4(a)(2) provides that a “notice of appeal filed after the
court announces its decision or order but before the entry of
judgment or order is treated as filed on the date of and after the
entry.” In this case. however. the late certification did not imbuc
the carlicr Order with finality.
The Supreme Court has made clear that Federal Rule of
Appellate Procedure 4(a)(2) “permits a notice of appeal from a
nonfinal decision to operate as a notice of appeal from the final
judgment only when a district court announces a decision that
would be appcalable if immediately followed by entry of
judgment.” FirsTier Mortg. Co. V. Investors Mortg. Ins. Co.. 498
U.S. 269. 276 (1991) (emphasis in originals). In other words. a
“premature notice of appeal is valid when *[alll that remained was
the clerk's ministerial task of entering a Rule 58 judgment.” In re
Jack Raley Construction, Inc.. 17 F.3d 291. 294 (9" Cir. 1994)
(dismissing appcal taken from order which did not complectcly
adjudicate issues) (quoting American Totalisator Co. v. Fair
Grounds Corp.. 3 F.3d 810, 813 (5" Cir. 1993)).
Here. even if the district court had immediately entered
Rulc 54 certification and the clerk had immediately cntered the
judgment. the November 25 decision would not have been then
'! The parties’ newly filed Notices of Appeal are attached hereto as
:Nhibits | and 2. Plaintif¥s* new Notice of Appeal is defective to the extent it
purports to be an “Amended Notice” in furtherance of this appeal. CR 669.
Moreover. by observing that this “Amended Notice” was filed, General
Electric does not waive any objections it may have to any procedural or
substantive defect in the new notice or the new appeal Certainly the District
Court's January 17 Order defines the appealable issues far more restrictively
than plaintills suggest
5
Lome
rea’
130-A
appcalable as to five of the ten plaintiffs. First. no decision or
judgment whatsoever existed as to plaintiff-appcllant Sandra
Schudel until January 17. On November 25. she had nothing from
which to appeal. Sccond. no final judgment existed as to plaintiff-
appellants John Hopkins. Ruth Hopkins. Kathrene Froese and
Merlin Carlson (the four who face a new trial). Sec Order of
January 17 at 5 (confirming that November 25 “order | was] not a
final judgment” as to the four). The grant of a new trial “is an
interlocutory order not appcalable as a final judgment.” Eaton v.
National Stecl Products Co.. 624 F.2d 863, 864 (9"" Cir. 1980):
sce Roy v. Volkswagenwerk Aktgicngescllschaft. 761 F.2d 670
(9" Cir. 1985) (Order granting new trial is not appcalable):
Gilliland v. Lyons. 278 F.2d 56. 58 (9" Cir. 1960) (same). In
short. there was and is no basis for this Court to treat the
premature notices of appcal as having been timely filed pursuant
to the later. final Order.
Since FirsTicr. this Court has confronted jurisdictional
defects which closcly approximate those found here and has
methodically dismissed the premature appeals. In Serine v.
Peterson. 989 F.2d 371 (9" Cir. 1993). for cxample. plaintiffs
noticed their appeal from a magistrate’s recommended dismissal.
The recommendation was not a final or appealable order and the
notice of appeal was therefore. Although the district court later
entered final judgment based on the recommended dismissal. this
Court dismissed the appeal. Applying FirsTicr . this Court
explained that because the appealed-from order could not itself
form the basis of a final judgment without further action or
devclopments. the premature notice could not be cured by
subsequent entry of judgment. 989 F.2d at 372-73. In In re Jack
Ralcy Construction. this Court likewise dismissed an appeal taken
by premature notice. 17 F.3d at 294-95. The premature notice
Was not valid because one issue before the district court (in that
casc. the question of pre-judgment interest) was not adjudicated in
the order from which the appeal was taken. Id.
FirsTier and its Ninth Circuit progeny mandate dismissal
here. because the district court's November 25 Order — which left
the claim of one plaintiff completely unresolved and which merely
ordered new trials as to another four plaintiffs — could not itself
form the basis of a final judgment without further action.
131-A
3. Gencral Electric Is Entitled To Proceed On A
Jurisdictionally Correct Appcal On Those Limited
Claims Certificd By The District
Court Or Otherwise Appcalable
Although the issuc raised is a jurisdictional onc. Gencral
Electric also notes that the dismissal of the present appeal in favor
of the later-takcn onc is an cquitable result and is more than a bow
to clerical formalitics. The nine plaintiff-appellants purport to
raisc dozens of “issucs™ in this appeal. but nonce of the ninc had a
final judgment. onc of the nine was not subject to judgment at all.
and four of the nine are restricted to only an Eaton-bascd
timeliness challenge. The procedural quagmire — unilaterally
created by plaintiff-appellants - can best be avoided by dismissal
of the premature appeals. Proper appellate procedures remain
available. and there is no prejudice to any party entitled to be
before this Court. Sce In re Jack Raley Construction. 17 F.3d at
294 (“prudent course of action is merely to file a fresh appeal
after entry of final judgment”).
Finally. General Electric notes that “Rule 4(a)(2) was
intended to protect the unskilled litigant who | 1] files a notice of
appeal from a decision that he reasonably but mistakenly believes
to be a final judgment, [2] while failing to file a notice of appeal
from the actual final judgment.” FirsTicr. 498 U.S. at 276. In
this case. neither consideration exists. Plaintiffs knew the
November 25 Order did not constitute an appcalable final
judgment: hence. plaintiffs themselves filed (but did not await
rcsolution of ) a motion for Rule 54(b) certification as well as an
objection to Gencral Electric's request for a more limited Rule
54(b) certification. CR 577, 578. 591. 592. 593. Sec In re Jack
Ralcy Construction. 17 F.3d at 294 (“We are unwilling to
conclude that the Appellants were lulled into the reasonable but
mistaken belicf that their August 13 notice of appeal was
efficacious. . . . Theirs was not a casual objection to the proposed
order of judgment proffered by the [Appellec].”): Serine. 989 F.2d
at 372 (“Plaintiff himsclf betrayed his awareness of this fact by
filing objections to the magistrate judge's order in the district
court.”). Morcover, plaintiffs have now filed what they style an
“Amended Notice of Appeal” directed to the later Order. CR 669.
Plaintiffs simply do not need — and are not entitled to — the
“protection” of Rule 4(a)(2).
Cae Ha AE bes Watt oY. 1 9 te ay ae
132-A
CONCLUSION
The district court did not render a decision on November
25. 1994, that cither (1) was then-appcalable or (2) would have
been appcalable if immediately followed by the cntrv of judgment.
The notices of appcal directed to that November 25 Order were
therefore premature and the jurisdictional defect was not cured by
entry of the later Order. The appcals must be dismissed.
DATED this 31™ day of January, 1995.
SPRIGGS & HOLLINGSWORTH
1350 I Strect. N.W. Ninth Floor
Washington, DC 20005
202/898-5800
By: s/
Joc G. Hollingsworth
Donald W. Fowler
Katharine R. Latimer
KEEFE. KING & BOWMAN, P.S.
Attorneys at Law
W. 601 Main Avenue Suite 1102
Spokane. WA 9920]
509/624-8988
By: s/ -
James B. King
Attorneys for the Gencral Electric
Company and Kaiser Aluminum and
Chemical Corporation
ia
133-A
RECEIVED
OFFICE OF THE CLERK
U.S. COURT OF APPEALS
1998 JAN 17 PM 2:30
HILED
DOCKETED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCHUDEL: DANIEL
GLASS: MERLIN E. CARLSON:
TIMOTHY SCHUDEL and
SANDRA SCHUDEL. husband
and wife. and the marital
community composed thereof.
KATHRENE RAE HOWELL:
CRAIG A. THOMPSON:
DEBORAH GUARAGNA.: and
JOHN and RUTH HOPKINS.
husband and wifc. and the marital
) NOS. 94-36250
)
)
)
)
)
)
)
)
)
)
community composed thercof. )
)
)
)
)
)
)
)
)
)
)
)
NO. CS-92-0081-FVS
Plaintiffs-Appcllants.
\
GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM
CORPORATION. a forcign
corporation.
Defendants-Appellces.
United States District Court for the Eastern District
of Washington Civil No. CV-92-00081-FVS
The Honorable Fred Van Sickle. District Judge
en
APPELLANT CARLSON'S MOTION TO REMAND FOR
LACK OF DISTRICT COURT JURISDICTION AND
STAY OF SCHEDULE (FRAP 9TH CIR. 27.11)
Marcia M. Meade
Dawson & Meade
W. 1300 Dean Ave.
Spokane. WA 99201-2015
Tclephone: (509) 328-4266
Attorney for Plaintiff-
Appellant Carlson
I. RELIEF SOUGHT
Appellant. Merlin Carlson. Jr.. moves to remand this
matter herein based on lack of District Court jurisdiction and
waiver of General Electric Company and Kaiscr Aluminum and
Chemical Corporation to jury trial of issucs and to stay the
schedule pursuant to FRAP Cir. R. 27-11. Appellant moves to
remand this matter to Federal District Court. Eastern District of
Washington with instructions that the District Court reinstate the
original judgment of July 13, 1994.
Il. GROUNDS
Special intcrrogatorics in a FRCP 49(a) verdict form were
submitted without objection by the court to the jury. The jury was
dismissed after it had consistently answered all the questions in the
special verdict form. A judgment was cntcred on July 13, 1994
based upon the findings of the special verdict form. Appellecs
Gencral Electric Company (G.E. hercin) and Kaiser Aluminum
and Chemical Corporation (Kaiser herein) neither submitted
special interrogatories nor objected to the special verdict form
submitted to the jury. Appellecs G.E. and Kaiscr have waived
their right to a jury trial on a subdivision of damages. The
District Court lacked jurisdiction to grant a new trial on the basis
of the need for additional findings on damages under FRCP 49(a).
Accord. Pau v. Yosemite Park & Curry Co.. 928 F.2d 880 (9th
2
|
135-A
Cir. 1991): McCord v. Maguire. 873 F.2d 1271 (9th Cir. 1989).
Under FRCP 59(d) the Court. on its own initiative, may grant a
new trial for any rcason that a party may have moved for a new
trial. G.E. and Kaiscr lacked the legal power to request. so the
District Court lacked jurisdiction. Gallick v. Baltimore & Ohio R.
Co.. 372 U.S. 108. 83 S.Ct. 659. 9 L.Ed.2d 618 (1963): Peterman
v. Chicago Rock Island and Pacific R. R. Co.. 493 F.2d 88. 91
(8th Cir. 1974) cert. denied 94 §.Ct. 3072.
Ill. BASIS
This motion is based upon the files and records herein, the
excerpts of the record filed contemporancously hercin. and the
Memorandum of counsel.
DATED this day of January. 1995.
DAWSON & MEADE
s/
Marcia M. Meade
Attorney for Appellant Carlson
Pe PIB AOR ath BE EES ed Tot
136-A
PROOF OF SERVICE BY MAIL
I am a citizen of the United States and am employed in the
City and County of Spokanc. State of Washington. I am over the
age of 18. and not a party to the within action or proceedings. My
business address is that of Dawson & Mcadec. 1300 W. Dean.
Spokane. Washington 99201. -
On January 17. 1995.1 served the within
APPELLANT CARLSON'S MOTION TO REMAND FOR
LACK OF DISTRICT COURT JURISDICTION AND
STAY OF SCHEDULE (FRAP 9TH CIR. 27.11)
on the partics in said action or proceeding by depositing two true
copics thereof enclosed in a sealed envelope with postage thereon
fully prepaid in the United States mail atSpokane. Washington.
addressed to the attorneys of record for said parties as follows:
Jamcs B. King Joc G. Hollingsworth
KEEFE. KING SPRIGGS & HOLLINGSWORTH
& BOWMAN 1350 "I" St... N.W.. 9th FI.
W. 601 Main. 1102 Washington. D.C. 20005
Spokane. WA 99201
Craig F. Schaucrmann Thomas C. Phelan
SCHAUERMANN & THAYER Attorney at Law
1700 E. Fourth Plain Blvd. 806 Officcrs Row
Vancouver. WA 98661 Vancouver. WA 98661
Exccuted this 16" day of January, 1995, at Spokane.
Washington.
I declare under penalty of perjury. pursuant to the laws of
the State of Washington, that the foregoing is true and correct.
s/
Marcia M. Meade
137-A
RECEIVED
OFFICE OF THE CLERK
U.S. COURT OF APPEALS
1995 JAN 17 PM 2:30
MILED
DOCKETED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCHUDEL: DANIEL
GLASS: MERLIN E. CARLSON:
TIMOTHY SCHUDEL and
SANDRA SCHUDEL. husband
and wifc. and the marital
community composed thercof:
KATHRENE RAE HOWELL:
CRAIG A. THOMPSON:
DEBORAH GUARAGNA.: and
JOHN and RUTH HOPKINS.
husband and wife. and the marital
) NOS. 94:36250
)
)
)
)
)
)
)
)
)
)
community composed thereof. )
)
)
)
)
)
)
)
)
)
)
)
NO. CS-92-0081-FVS
Plaintiffs-Appcllants.
\
GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM
CORPORATION. a forcign
corporation,
Defendants-Appellecs.
138-A
United Statcs District Court for the Eastern District
of Washington Civil No. CV-92-00081-FVS
The Honorable Fred Van Sickle. District Judge
APPELLANT CARLSON'S MEMORANDUM IN
SUPPORT OF REMAND, REINSTATEMENT OF
VERDICT, AND STAY OF PROCEEDINGS
UNDER CIR. R. 27-11.
Marcia M. Mcadc
Dawson & Meade
W. 1300 Dean Ave.
Spokane. WA 99201-2015
Tclephone: (509) 328-4266
Attorney for Plaintiff-
Appellant Carlson
I. NATURE OF MEMORANDUM
Appellant Carlson submits this Mcmorandum in support
of his Motion to remand to the District Court on the basis that the
District Court lacked authority to vacate the verdict and order a
new trial. and to vacate the schedule for record preparation and
bricfing pursuant to Cer. R. 27-11.
Il. FACTS
This action was brought as a negligence action in State
Court. CR 1. ER 2. Bascd on diversity it was removed to Federal
Court. CR 1. ER 3. On February 28. 1994 the Court ordered
Plaintiffs to: . . (a) list cach claim against the Defendants.
including all theories of liability or causation. .. CR 326. ER 6.
On March 7, 1994, Plaintiffs identified that they were making a
claim for negligence. CR 327, ER 9. 10. An extensive list of
Plaintiffs’ theorics of negligence and causation were provided. CR
327. ER 11-19.
139-A
The District Court found Merlin Carlson had sufficient
evidence to support his negligence claim as it related to
neurological damage. CR 327, ER 119-120. The evidence of
ncurological damage will be bricfly addressed below, with the
caveat that there was substantially more evidence than identificd
herein. The evidence is being identificd for purposes of the
application of the law of FRCP 49(a).
Merlin Carlson, along with the other Plaintiffs. was
negligently exposed to hazardous chemicals. CR 476, ER 109.
The exposure to hazardous chemicals occurred during a hazardous
\waste clean-up in Spokane, Washington. Gencral Electric's own
personnel, Dale C. Haskins. identified the plaintiff-worker's were
exposed to hazardous chemicals. RT Vol. 36. ER 80-96. The
jury found General Electric (hereinafter G.E.) and Kaiser
Aluminum and Chemical Corporation (herein Kaiscr) were
negligent in exposing Merlin Carlson. Jr. CR 476, ER 109.
The exposure incident was investigated by the
Washington State Health Department by Dr. Samucl Milham, Jr
and other government officials. RT Vol. 7. Exhibit 1. ER 49-50.
55-63. Dr. Milham's investigation was published in scientific
peer review journal article published on this incident. Exhibit |.
ER 102-108. Dr. Milham testified as to his investigation of
Merlin Carlson's injuries relative to his exposure to the hazardous
chemicals. Dr. Milham identified the chemicals used were
scientifically known to cause injury to human brains. Vol. 7, ER
Dr. Danicl Goldstcin testified extensively how these
hazardous chemicals damage the cell structures of the human
body. c.g. RT Vol. 3. ER 25-28, 34. 42-47. Dr. Goldstein
testified Merlin Carlson, Jr., more probably than not, was injured
by the negligent exposure to hazardous chemicals. RT Vol. 3, ER
29-33. 41. 48. Merlin Carlson's damages were very serious and
affected all aspects of his life. RT 575, ER 41. There was
extensive testimony from two ncuropsychologists as to the cffect
Carlson's brain damage. RT Vol. 17, ER 66-73, Vol. 19, ER 74-
75. Asa result of the injury Carlson was unable to live
independently. RT 312. ER 75.
Mr. Carlson had a $730.000 carning capacity loss as a
result of his injury. RT Vol. 10, ER 97-99. Mr. Carlson was 24
vears old at the time of the injury.
140-A
Mr. Carlson was a Blackfect Native American. RT Vol.
22. ER 76. He had been training to be a medicine man for his
tribe. since a child. As a result of his injury Mr. Carlson was no
longer ablc to full file his desires and obligations as a medicine
man for his tribe. RT Vol. 22. ER 76-79.
In addition to the evidence above there was extensive
evidence through Dr. Paula Lantsberger as to her evaluation and
trcatment of Merlin Carlson. There was also extensive testimony
as to the impact of the injurics on Mr. Carlson's day to day life. In
addressing the jurisdictional issuc it is not necessary for Mr.
Carlson describe in detail the evidence from Dr Lantsberger. lay
Witnesses and Mr. Carlson. Mr. Carlson docs except and so
appealed as to the District Court's finding that his evidence was
insufficient as to other arcas of injury.
The Court near the cnd of the trial asked that there be a
listing of all the contentions as to the Plaintiffs. RT 11962-93
ER 100-101. Merlin Carlson's contentions were provided to the
Court. CR 592, ER 121-122. The Court indicated that the
contentions for Merlin Carlson were requested in connection with
instructing the jurv. RT 11692. ER 100.
At the close of the case approximatety 5 days were spent
by the Court and Plaintiffs’ counsel in determining how the jury
Was to be instructed. At no time did Appellecs G.E. or Kaiser
request that there be special interrogatories propounded as to the
sub-issucs of damages.
The jury found in favor of Mcrlin Carlson on negligence.
The jury made a specific factual finding as to Merlin Carlson's
damages. CR 476, ER 109-110. Before the jury was released
there was no request by G.E. or Kaiser that the jury subdivide the
damages. A judgment in favor of Mcrlin Carlson was entered on
July 13, 1994,
Unlike the other Plaintiffs, G.E. and Kaiser did timely
serve Merlin Carlson's counsel with FRCP 50 and 59 Motions
aftcr business hours on the 10th judicial day. CR 486, 487, 488.
489. ER 110. 111.112. 113. The tenth day, for purposes of any
motion under FRCP 59. was July 27. 1994. The District Court
did not provide notice under FRCP 59(d) to Merlin Carlson as to a
new trial based upon the failure of jury findings on all of Carlson's
theorics of damages.
G.E.'s and Kaiscr's post-trial Motions were based upon
4
141-A
twelve claimed errors of law. However. G.E. and Kaiser did not
claim as error defects in the special verdict form. CR 571, ER
117-118. On November 22. 1994, the District Court sua sponte
entcred an order of a new trial for a factual determination as to the
subdivision of damages. CR 571, ER 119-120.
Ill. SUMMARY OF THE ARGUMENT
The jury was dismissed after reaching a special verdict on
Merlin Carlson's negligence claim on July 13, 1994. G.E. and
Kaiscr did not submit intcrrogatorics. demand intcrrogatorics, or
object to the special verdict form submitted to the jury. Once the
jury returned its verdicts ncither G.E. nor Kaiser demand, nor did
the District Court request. that the jury make additional findings
before the jury was dismissed.
Under FRCP 49(a) G.E. and Kaiser waived any right to a
jury trial as to a jury trial on the sub-issucs of Merlin Carlson's
damages. Once G.E. and Kaiscr agreed to the Special Verdict
form, which addressed all the basic clements of a claim of
negligence and a defense of borrowed servant. Appellees-
Defendants lack the power to move for a new trial for findings as
to sub-issucs on damages. The District Court lacked the authority
to grant a new trial. when a party lacked the power to so move.
Under FRCP 56(d) the District Court lacked jurisdiction
to order a new trial for determination of the sub-issucs on
damages. Therefore, the District Court lacked jurisdiction to
order a jury trial on factual issues which have becn waived by
G.E. and Kaiser. This Court should remand this matter to the
District Court with instructions to reinstate the judgment as to
Merlin Carlson, Jr. of July 13, 1994.
IV. LA
A. Standard of Review for Procedural Issues.
Jurisdictional issues, including issues of procedure such
as a determination of whether a party waived a right to a jury trial
on a sub-issuc and the Court's motions under FRCP 56(d) are
reviewed de novo. Westinghouse Electric Corp. v. Newman and
Holzinger, P.C.. 992 F.2d 932 (9th Cir. 1993): Delta Country
Ventures, Inc. v. Magana. 986 F.2d 1260. 1262 (9th Cir. 1993);
5
142-A
Dubbs v. C.LA.. 966 F.2d 1114, 1118 (9th Cir. 1989): see also 2
Federal Procedure, L.Ed.. Appeal, Sarschory, and Review, §
3:652 (1981).
B. Motions on the Court's Own Initiative, FRCP
59(d) are Jurisdictional.
FRCP 59(d) has three jurisdictional requirements before
the District Court may grant a new trial on the Court's Motion.
The first requirement is timing. The Court may grant a
new trial on its own motion is within ten days of the verdict.
FRCP 59d). The second sentence of FRCP 59(d) has been read
to allow the District Court the Opportunity to move for a new trial
if timely motions for a new trial are pending before the court. Scc
Notes of Advisory Committee on FRCP 59(d) 1966 amendment.
The second jurisdictional requirement is that the Court may grant
a new trial only for reasons that a party might move for a new
trial. The third requirement is that the Court give the partics
notice and an opportunity to be heard.
Merlin Carlson, Jr., although not served during business
hours. his counscl was timely served with Motions and
Memorandum under FRCP 50 and 89. Merlin Carlson. Jr Was
not timely served with notice as to the time of the hearing in
violation of LR 7(c). Even if one assumes timely service on
Merlin Carlson. Jr.. the District Court did not have jurisdiction
undcr FRCP 56(d) to grant a new trial to subdivide the damage
issuc
G.E. and Kaiser had waived the right to a jury trial on the
sub-issuc of damages. Pau v. Yosemite Park and Curry Co.. 928
F.2d 880. 890-91 (9th Cir. 1991). Once the jury was dismissed.
after answering a special verdict form, G.E. and Kaiser had no
right to a new trial on damages. McCord v. Maguire, 873 F.2d
1271 (9th Cir. 1989). If G.E. and Kaiser could not move for a
new trial to address the sub-issucs on damages. the jurisdictional
requirement of"... for any reason for which it might have granted
a new trial. . ." is absent. The District Court lost Jurisdiction
when G.E. and Kaiser waived the right. and therefore were barred
from making motions for a new trial for determination of sub-
issucs On damages. Accord. Reorganized Church of Jesus Christ
v_U.S. Gypsum. 882 F.2d 335, 338 (8th Cir. 1989).
The District Court failed to meet the third jurisdictional
requirement of FRCP 56(d). The first Merlin Carlson. Jr. heard
6
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of a new trial being granted to determine tiie sub-issucs of
damages was when the order of November 25, 1994, was
received. Merlin Carlson. Jr. has been denicd notice and an
opportunity to be heard on the District Courts FRCP 56(d)
motion.
The jurisdictional requirements of FRCP 59 arc to be
strictly construed. Brower v. Dir. Ill, Dept. of Corrections. 434
U.S. 257, 264-65, N.5, 54 L.Ed.2d 521, 98 S.Ct. 556 (1978):
Peterman vy. Chi Rock Island & Pacifi ilr Q.: and,
McConnell v. Meba Medical and Benefit Plan, 778 F.2d 521, 526
(9th Cir. 1985). At a minimum two of the three jurisdictional
requirements of FRCP 59(d) were lacking. The partics agreed to
a special verdict form. The Court submitted it. The District
Court was without power or authority to override the consistent
findings of the special verdict. Gallick v. Baltimore & Ohio R.
Co.. 372 US. 198. 110. 83 S.Ct. 659, 661. 9 L.Ed.2d 618 (1963).
nce a Party Waives the Right Trial
an Issue, the Court does not have Authority to Su nte
Grant a New Trial on the Issues Waived.
FRCP 51 requires a party to object to the failure to give
adequate jury instructions. Pau v. Yosemite. 928 F.2d 880. 890-
91 (9th Cir. 1991). G.E. and Kaiser failed to request or object to
the lack of special interrogatories as to cach factual theory of
Merlin Carlson's damages. It was G.E. and Kaiscr's duty to
request such questions. McCord v. Maguire. 873 F.2d at 1271,
1274 (9th Cir. 1989). amended opinion 885 F.2d 650. The form
of the special verdict is to be decided before closing arguments so
the Court may structure its instructions accordingly. Landcs
Const. Co.. Inc. v. Royal Bank of Canada. 833 F.2d 1365, 1374
(9th Cir. 1987). In the post-trial motion. it was too late for G.E.
and Kaiser. hence, the District Court was too late to submit sub-
issucs on damages to a jury.
Fed. R. of Civ. P. 49(a) provides the District Court with
wide discretion in the content and submission of special verdict
forms. Sce Landes Const. Co., 833 F.2d at 1374. The Court's
discretion ends with the arrival of consistently answered special
vericts. Gallick. supra.
Before the special verdict form was submitted to the jury.
the District Court had the authority to add special intcrrogatorics
or redraft the special interrogatorics propounded. Here, before
7
sin licen eau
144-A
trial Carlson had identified his theorics of causation and submitted
multiple offers of proof of his theorics of causation and damages:
during tcstimony Carlson presented multiple evidence of his injury
and damages: and, before instructions Carlson provided a written
list of all his contentions of damages. Carlson's theory of damages
Was not a mystery. The District Court and Appellecs-Defendants
were complctcly advised as to Carlson's damages. If the
Appcllecs-Defendants or the District Court believed additional
special intcrrogatorics were need then, it was their duty to propose
and demand them.
Carlson had no duty to submit special interrogatorics on
sub-issucs of damages. Accord McCord, supra. amended opinion
at 873 F.2d at 650. FRCP 49(a) clearly notifies partics and the
Court that cach party waives the right to a trial by jury on issucs
omitted unless before the jury retires the party demands its
submission to the jury. The right being waived the District Court
may not resurrect it. McCord, supra: Burgess. infra.
D. The Court had no Authority to Grant a New Jury
Trial on Issues Waived by Appellees.
Neither G.E. nor Kaiser moved for a new trial based upon
an omission from the special verdict form of sub-issucs on
damages. The District Court only has jurisdiction to grant a new
trial for reasons which it might have granted a new trial on a
motion for G.E. and Kaiser. Conscnting to a special verdict. G.E.
and Kaiscr waived their right to move for a new trial based upon
sufficicncy of evidence to support all the theorics of Merlin
Carlson, Jr.'s damages. McCord v. Maguire: A. & G. Stevedores
v. Ellerman Lines. 369 U.S. 355, 82 S.Ct. 780. 7 L.Ed.2d 798
(1962).
G.E. and Kaiser waived their right to do so. Pau, supra at
928 F.2d at 891: and, FRCP 49a). Once the right has been
waived the District Court docs not have the authority to give back
the right waived. Burgess v. Premicr Corp, 727 F.2d 826. 831
(1984).
The District court determined that there was sufficicnt
evidence to support a jury verdict on the neurciogical theory of
Carlson's claim for damages arising out of negligence. in those
circumstances where a party has waived the right for a special
verdict finding as to factual theorics. the Court has consistently
held a challenge for sufficiency of the evidence will not lic.
8
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McCord v. Maguire. Piclet v. Piclet. 686 F.2d 1210, 1217 (7th
Cir. 1982). cert. denied 103 S.Ct. 73 (1983).
A Court simply cannot choose to ignore a finding that is
part of a special verdict. Gallick v. Baltimore & O.R.R. Co.. 372
U.S. 108. 110. 83 S.Ct. 659. 9 L.Ed. 618 (1963). G.E.'s and
Kaiscr's failure to request special verdicts as to cach factual
thcory of Carlson's damages prevent them from challenging the
sufficiency of the evidence as to some but not all of the specific
damages. McCord at 1274. Landes Const. Co.. 833 F.2d at 374.
Carlson provided his negligence claim with sufficient evidence ofa
neurological damage. The jury verdict had to be sustained. G.E.
and Kaiser lacked the Iegal right. hence. the District Court lacked
the authority to find fault with a consistent verdict.
E. Appellant Merlin Carlson Was Under No
Obligation To Submit Additional Special Interrogatories.
Throughout this litigation G.E. and Kaiser have
perpetrated confusion by suggesting an negligent injury to the
brain is a separate claim from an injury to the lungs. Merlin
Carlson has a negligence claim. The special verdict form covered
all the elements of negligence. What part of Carlson's body
manifesting the injury did not create scparate claims of negligence.
Under Washington law the essential elements of
actionable claims for negligence are: (1) the existence of a duty
owed to the complaining party: (2) a breach thereof. (3) a
resulting injury: and (4) a proximate cause between the claimed
breach and the resulting injury. Pedroza v. Bryant. 101 Wn.2d
226. 228. 677 P.2d 166 (1984). Therc is no Washington law even
suggesting individual manifestations of an injury in a single person
creates separate negligence claims. What parts of Merlin
Carlson's body and mind were injured are sub-issues of damage
that were «wbsumed in special intcrrogatorics. question no. 2 and
question no. 3. CR 476. ER 110. Accord. McCord. 873 F.2d at
1274. Burgess v. Premicr Corp.. 727 F.2d 826. 831 (9th Cir.
1984).
FRCP 49(a) provides the means for partics and courts to
direct the jury through all the elements constituting a claim for
rclicf. The use of a special verdict under FRCP 49(a) comes with
a clear warning as to the finality of the jury's findings. FRCP
49(a). The court must assume the jury consciously and correctly
responded to cach question and instruction. Gallick. supra. In
9
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this casc this means the District Court had to assume the jury
consciously and correctly applied the law given to them on
proximate causc. The District Court did not have the authority to
assume the damage amount included assertions with insufficicnt
proof.
F. FRCP 49(a) is viewed in The Context Of the
Seventh Amendment.
In Gallick v. Baltimore & Ohio R. Co.. 372 U.S. 108.
110. 83 S.Ct. 659. 661. 9 L.Ed. 618 (1963). the application of a
special verdict in the face of a party's multiple contentions was
addressed. The Gallick Court of Appcals found on proximate
cause that a party had not met its burden to sustain a special
verdict. In reversing the Court of Appeals. the United States
Supreme Court observed in Gallick. 372 U.S. at 107-108:
It is not the function of a court to scarch the record for
conflicting circumstantial evidence in order to take the
case away from the jury on a theory that the proof gives
equal support to inconsistent and uncertain inferences.
The focal point of judicial review is the reasonableness of
the particular inference or conclusion drawn by the jury.
It is the jury. not the court. which is the fact-finding body.
It weights the contradictory evidence and inferences.
judges the credibility of witnesses. reccives expert
instructions, and draws thc ultimate conclusion as to the
facts... That conclusion. whether it relates to negligence.
causatioii or any other factual mattcr. cannot be ignored.
Courts are not free to reweigh the evidence and set aside
the jury verdict mercly because the jury could have drawn
different infcrences or conclusions or because judges fcc!
that other results are more reasonable. (Cites omitted).
It is from this very basic premise embodied in the application of
the 7th Amendment that the Gallick Court reviewed the court's
jurisdiction after a special verdict form has becn submitted.
The District Court findings as to Merlin Carlson. Jr. were
reweighing of the evidence. Further. the District Court did not
consider the clear law of Washington on what types of evidence
are sufficient to support a jury verdict. Jurisdictionally. the
IC
:
a
147-A
District Court was bound to Washington substantive law when
considering the jury's findings under FRCP 49(a).
In arriving at its opinions. the District Court only utilized
the law of O'Donoghue v. Riggs. 73 Wn.2d 814, 440 P.2d 823
(1968). addressed the standard of proof required in a medical
negligence case. This was not a medical negligence case.
McLaughlin v. Cook. 112 Wn.2d 829. 774 P.2d 1171 (1989).
addressed the gencral Washington law identifying the nature of
medical testimony needed. Under McLaughlin it is not required
that a medical doctor statc. unequivocally. that a particular
condition in a paticnt is proximately related to the conduct of the
defendant. Rather all the medical testimony at trial is considered.
McLaughlin at 837. As long as there is medical testimony and the
jurv need not resort to speculation or conjecture about causation.
the proof is sufficicnt.
Under Washington law medical causation includes
consideration of more than specific opinions about particular
conditions. The highest court in Washington recognized
proximate cause of damage may come from lay witnesses.
McLaughlin held at 112 Wn.2d at 837:
It is not always necessary to proof every clement of
causation by medical testimony. If from the facts and
circumstances in the medical testimony given. a
rcasonable person could infcr the causal connection cxists.
the evidence is sufficient. Bennett v. Dept. of Labor &
Industry. 95 Wn.2d 531. 533, 627 P.2d 104 (1981).
In Bennett. a previous Supreme Court opinion of Bitzan
v. Parisi. 88 Wn.2d 116, 558 P.2d 775 (1977). was endorsed.
Upon Bitzan. lay witnesses may testify to aspects of physical
disability of an injured person that are observable by their scnses
and describable without medical training. and further the injured
person can testify regarding the subjective aspects of injury and to
the limitations to his physical movement. Bennett at 95 Wn.2d at
533 paraphrasing Bitzan.
Carlson submits the application of the broad law of
McLaughlin. Bennett. and Bitzan would support a jury finding on
all his theorics of injury. It was in the context of this law that the
District Court had a duty to review the sufficiency of Carlson's
:
2
;
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evidence on injury and damage. Even under the more stringent
O'Donoghue v. Riggs' law. the District Court found Carlson had
sufficient cvidence to support the jury's verdict of his neurological
damages. CR 57]. ER 119-120.
G. Difference to the Party's Agreement to FRCP 49a)
Special Verdict and the 7th Amendment Right Precluded a
New Trial on Sub-Issues.
The language of FRCP 49(a) is unambiguous. The rulc
clearly defines what occurs, procedural. when a special verdict
form is submitted to the jury. The pertinent language to the
jurisdictional issuc here is:
49a). . The court shall give to the jury such explanation
and instructions concerning the matters thus submitted as
may be necessary to enable the jury to make its finding
upon cach issuc. If in doing so, the court omits any issuc
of fact raised by the pleadings or by the evidence, cach
party waives his right to a trial by jury of the issues so
admitted unless. before the jury retires. he demands its
submission to the jury. . .
Sec FRCP 49a).
Here the District Court's FRCP 56(d) motion and order
granting a new trial as to Merlin Carlson came about with a
disregard of matcrial jury findings on a special verdict form. The
jury's findings on the special verdict form were consistent. The
District Court did determine that there was sufficient evidence to
support the jury's findings as to the ncurological manifestations of
Mr. Carlson's injurics. Our Supreme Court has addressed the
limit of the court's authority when a special verdict under FRCP
49(a) has been answered by the jury. In Gallick v. Baltimore &
Ohio R. Co.. 372 U.S. at 119:
But it is the duty of the courts to attempt to harmonize the
answers. if it is possible undcr a fair reading of them:
"Where there is a view of the casc that makes the jury's
answers to special interrogatorics consistent. they must be
resolved that way." Atlantic & Gulf Stevedores. Inc. v.
Ellerman Lines, Ltd.. 369 U.S. 355. 364. We therefore
must attempt to reconcile the jury's findings. by cxegesis
12
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if necessary... . before we arc free to disregard the jury's
specical verdict and remand the casc for a new trial.
(Cites omitted).
The special verdict was consistent with a 24 year old male
suffering the negligent infliction of a significant brain injury. The
District Court lacked jurisdiction to find that the jury determined
Merlin Carlson's injury from one or many different organs in his
body.
V. CONCLUSION
G_E. and Kaiser did not submit. request. or object to the
special verdict form. Before the jury was dismissed. the District
Court had wide discretion as to the special verdict form. Once the
jury was dismissed, the District Court had no discretion. The
answers to the special verdict form were consistent. The answers
covered all the elements of a claim of negligence. Under the clear,
unambiguous law the District Court was bound to resolve the
dispute consistent with the jury's answering of the special verdict
form. The District Court had no jurisdiction to theorize as to what
theory of Carlson as to damages the jury made its findings. For
all the court knows. the jury may have only found for Mr. Carlson
on his ncurological injurics.
Merlin Carlson was 24 vears old when he received a
severe injury to his brain. He is unable to live independently. He
is unable to be gainfully employed. He has lost the ability and
capacity for fulfill his rcligious obligations as a medicine man for
the Blackfect Tribe. At verdict Mr. Carlson had five years of past
injury and 45 years of future life. The consistent jury verdict of
$2.775.768.00 for 50 years of severe brain damage and the loss of
the ability to function as a normal human being is not
unreasonable.
DATED this 16th day of January. 1995.
DAWSON & MEADE
s/
Marcia M. Meade.
Attorney for Appellant Carlson
13
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PROOF OF SERVICE BY MAIL
I am a citizen of the United Statcs and am emploved in the
City and County of Spokane. State of Washington. I am over the
age of 18, and not a party to the within action or proceedings. My
business address is that of Dawson & Mcadc, 1300 W. Dean.
Spokane. Washington 99201.
On January 17. 1995. | served the within
APPELLANT CARLSON'S MEMORANDUM IN
SUPPORT OF REMAND, REINSTATEMENT OF
VERDICT, AND STAY OF PROCEEDINGS
UNDER CIR. R. 27-i1.
on the partics in said action or procceding by depositing two truc
copics thereof enclosed in a scaled cnvclope with postage thercon
fully prepaid in the United States mail at Spokane. Washington.
addressed to the attorneys of record for said parties as follows
James B. King Joc G. Hollingsworth
KEEFE. KING SPRIGGS & HOLLINGSWORTH
& BOWMAN 1350 "I" St.. N.W.. 9th Fl
W. 601 Main. 1102 Washington. D.C. 20005
Spokane. WA 9920]
Craig F. Schaucrmann Thomas C. Phelan
SCHAUERMANN & THAYER Attorney at Law
1700 E. Fourth Plain Blvd. 806 Officcrs Row
Vancouver. WA 98661 Vancouver. WA 98661
Exccuted this 16" day of January. 1995. at Spokane.
Washington.
I declare under penalty of perjury. pursuant to the laws of
the State of Washington. that the foregoing is truc and correct
s/
Marcia M. Meade
14
RECEIVED
OFFICE OF THE CLERK
U.S. COURT OF APPEALS
995 MAR -7 AM 10:03
FILED
DOCKETED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCHUDEL: DANIEL
GLASS: MERLIN E. CARLSON.
TIMOTHY SCHUDEL and
SANDRA SCHUDEL, husband
and wifc. and the marital!
community composed thereof:
KATHRENE RAE HOWELL:
CRAIG A. THOMPSON:
DEBORAH GUARAGNA.: and
JOHN and RUTH HOPKINS.
husband and wife. and the marital
community composed thereof.
Plaintiffs-Appcellants.
\
GENERAL ELECTRIC
COMPANY. a forcign corporation.
and KAISER ALUMINUM
CORPORATION. a forcign
corporation.
Defendants-Appellecs.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
NOS. 94-35145
DC CV-92-0081-FVS
United States District Court for the Eastern District
of Washington Civil No. CV-92-00081-FVS
The Honorable Fred Van Sickle, District Judge
APPELLANTS’ SCHUDEL, GLASS, SCHUDEL,
SCHUDEL, HOWELL (FROESE), THOMPSON,
HOPKINS AND HOPKINS MOTION FOR REMAND AND
FOR STAY OF SCHEDULE PURSUANT TO CIRCUIT
RULE 27.11
152-A
Marcia M. Mcadc
Dawson & Meade
W. 1300 Dean Ave.
Spokane. WA 99201-2015
Telephone: (509) 328-4266
Attorney for Plaintiff-
Appcllant Carlson
Craig F. Schauermann
Schauermann & Thayer
1700 NE Fourth Plain Blvd.
Vancouver. WA 98661
Telephone: (360) 695-4244
Attorncy for Plaintiff-
Appellants Schudels. Glass
Howcll (Frocsc). Thompson
Thomas C. Phelan
806 Officers Row
Vancouver. WA 9866]
Telephone: (360) 750-8750
Attorney for Plaintiff-
Appellants Hopkins
I. RELIEF SOUGHT
Appellants. David Schudel. Danicl Glass. Timothy
Schudel. Sandra Schudel. Katherinc Howell (Froese). Craig
Thompson. Ruth Hopkins. John Hopkins and Merlin Carlson. Jr..
move to remand this matter based on:
(1) lack of District Court jurisdiction:
(2) waiver of Gencral Electric Company and Kaiser
Aluminum and Chemical Corporation to jury trial of sub-issues
omitted from the Special Verdict Form: and.
(3)Gencral Electric Company's and Kaiser Aluminum and
Chemical Corporation's have failed to appeal (in regard to these
Appellants) the District Court's rulings.
All Appellants request this matter be remanded to Federal
District Court. Eastern District of Washington with instructions
that the District Court reinstate the original judgment of July 13.
1994.
Appellants further move to stay the schedule pursuant to
Fed. R. App. P. Cir. R. 27-11.
Il. GROUNDS
There are three grounds for supporting the motion to
remand. The grounds apply in different combinations to the
9
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153-A
individual appellants.
1. Lack of Timely Service
Judgment in favor of all Plaintiffs-Appellants was
originally entered on July 13, 1994. Defcndants-Appellces
Gencral Electric Company and Kaiscr Aluminum and Chemical
Corporation. filed their Fed. R. Civ. P. 50 and 59 motions on July
27. 1994, (the 10th judicial day after judgment). Defendant-
Appellees timely effectuated service of the Rule 50 and 59
motions on Appellant Carlson. only. (Appellant Carlson's counsel
did not represent anv of the other Plaintiff-Appcllants).
Defendants-Appellces failed to timely serve all of the other
Plaintiffs-Appcllants.
Defendants-Appellces in effecting service upon Plaintiffs-
Appellants. Schudel. Glass. Schudcl. Schudcl. Thompson. Howcll
(Frocsc). Hopkins and Hopkins. counscls gave those pleadings to
a private delivery service. "Federal Express," on July 27, 1994
(the 10th day) for delivery at a later date. Delivery did not occur
until after the 10th day. There is no record of the actual date of
service other than the assertion by Defendants-Appcllecs’ counscl
that the documents were given to a private delivery service on the
10th day with instructions that the motion be delivered the next
day. In order to be timely. Fed. R. Civ. P. 50 and 59 motions
must be served within 10 days of the entry of judgment. Service is
not complete until actual delivery to the opposing party has
occurred or the document has been properly deposited in the
"mail." Fed. R. Civ. P. 5(b). The trial court has no jurisdiction to
entertain an untimely served post-trial motion. Budinich v. Becton
Dickenson and Company. 486 U.S. 196. 108 S.Ct. 1717. 100
L.Ed.2d 178 (1988). Mt. Graham Red Squirrcl v. Madigan. 954
F.2d 1441, 1462 (9th Cir. 1992). Despite this lack of jurisdiction,
the trial court entertained the motions, granted Defendants-
Appellees’ motion for judgment dismissing the complaint of David
Schudcl, Daniel Glass, Timothy Schudel. Sandra Schudel. and
Craig A. Thompson and ordered a new trial for damages for
Kathrene Rae Howell (Frocsc). John Hopkins and Ruth Hopkins.
2. Waiver of Rights to Issues Under Fed. R. Civ. P.
- 49(a).
The trial court also granted a new trial as to Merlin
Carlson's damages. Merlin Carlson's motion for remand is not
3
154-A
based upon Fed. R. Civ. P. 5(b). but upon lack of jurisdiction
under Fed. R. Civ. P. 59(d). Kathrene Howell Froesc. Ruth
Hopkins and John Hopkins join Merlin Carlson in this additional
ground for lack of jurisdiction by the District Court.
The District Court lacked jurisdiction to initiate and grant
a motion undcr Fed. R. Civ. P. 54(d) as to Carlson, Froese.
Hopkins and Hopkins. Special intcrrogatorics pursuant to Fed.
R. Civ. P. 49(a) (Special Verdict Form) were submitted without
objection by the court to the jury. The jury was dismissed after it
had consistently answered all the questions in the special verdict
form. A judgment was centered on July 13. 1994 based upon the
findings of the special verdict form. Defendants-Appcllees had a
duty to object or submit special intcrrogatorics under Fed. R. Civ
P. 49(a). rather Defendants-Appellecs accepted the Special
Verdict form as submitted and decided by the jury. Appellees
Gencral Electric and Kaiscr waived their right to a jury trial on a
sub-issucs. including damages. because of their lack of objcction
to the Special Verdict Form used. Despite this waiver by
Defendant-Appellees the District Court. sua sponte. four months
after the original judgment was entered. granted a new trial
Defendant-Appellecs pursuant to Fed. R. Civ. P. 59(d). Fhe
District Court lacked jurisdiction to grant a new trial on the basis
Accord. Pau v. Yosemite Park & Curry Co.. 928 F.2d 880 (9""
Cir. 1991). McCord v. Maguire. 873 F.2d 1271 (9" Cir. 1989)
Under Fed. R. Civ. P. 59(d) the Court. on its own
initiative, may grant a new trial for any rcason that a party may
have moved for a new trial. General Electric and Kaiser
Aluminum waived their right to pursuc a Fed. R. Civ. P. 59(b)
and (c) motions by their failure to object the Special Verdict Form.
They therefore lacked the Icgal power to move for a new trial on
this ground: hence. the District Court lacked jurisdiction to move
and grant a new trial under Fed. R. Civ. P. 59d). Gallick v
Baltimore & Ohio R. Co.. 372 U.S. 108. 83 S.Ct. 659. 9 L.Ed 2d
618 (1963): Peterman v. Chicago Rock Island and Pacific R. R
Co.. 493 F.2d 88. 91 (8" Cir. 1974) cert. denied 94 § Ct. 3072
3. Defendant-Appellees have not appealed.
The foregoing grounds for remanding this appcal have
previously been made and addressed in motions to remand in the
Ninth Circuit U.S. Court of Appeals. Docket No. 94-36250 for all
4
155-A
of thc Appellants. In the intcrim. the status between the partics
creates an additional ground for remanding this matter.
This is an action involving multiple partics, not multiple
claims by an individual party. The claim made by all Plaintiffs-
Appellants was negligence.
All of the Appellants-Plaintiffs have asserted an appcal
from the District Court's lack of jurisdiction to cnter the
November 25, 1994 and January 17. 1995 orders. In making the
time of "final" judgment crystal clear to all partics. Plaintiffs-
Appellants timcly moved for Fed. R. Civ. P. 54(b) certification.
On January 17, 1995 findings were made and 54(b)
certification was granted. All of the Plaintiffs-Appellants herein
timely filed an Amended and Notice of appeal of the District
Court's November 25, 1994 and January 17, 1995 orders. On the
other hand. Defendants-Appcllecs have failed to appeal or cross
appcal from even the final Order of January 17, 1995. On
January 17, 1995, it was clear a final order was being entered as
to all Plaintiffs-Appcllants’ individual negligence claims.
Defendants-Appellees have failed to appeal any claimed
error. The status of this record is that the Defendants-Appellees
have not and. now. can not ask this Court to consider any other
matter. There being no appeal by Defendants-Appellees this
matter is ripe for remand for lack of the District Court’
jurisdiction
ill. BASIS
This motion is based upon the files and records hercin. the
attachments of the motions and memorandum by Appellants in the
Ninth Circuit U.S. Court of Appeals Docket No. 94-36250.
contemporancously herein. and the Memorandum of counsels.
DATED this 6th day of March. 1995.
DAWSON & MEADE
s/
Marcia M. Meade
Attorney for Appellant Carlson
156-A
SCHAUERMANN & THAYER
s/Marcia M. Mcade for
Craig F. Schaucrmann
Attormey for Appellants Schudel.
Glass, Schudel. Schudcl. Howell
(Froese). and Thompson
s/Marcia M. Mcade_for
Thomas C. Phelan
Attorney for Appellants Hopkin
and Hopkins
157-A
PROOF OF SERVICE BY MAIL
| am a citizen of the United States and am employed in the
City and County of Spokane, State of Washington. I am over the
age of 18, and not a party to the within action or proceedings. My
business address is that of Dawson & Meade. 1300 W. Dean,
Spokane. Washington 99201
On March 6", 1995, I served the within
APPELLANTS’ SCHUDEL, GLASS, SCHUDEL, SCHUDEL,
HOWELL (FROESE), THOMPSON, HOPKINS AND HOPKINS
MOTION FOR REMAND AND FOR STAY OF SCHEDULE
PURSUANT TO CIRCUIT RULE 27.11
on the parties in said action or proceeding by depositing two truc
copies thereof enclosed in a scaled envelope with postage thereon
fully prepaid in the United States mail at Spokane. Washington.
addressed to the attorneys of record for said partics as follows
James B. King Joe G. Hollingsworth
KEEFE. KING SPRIGGS & HOLLINGSWORTH
& BOWMAN 1350 "I" St... N.W.. 9th FI
W. 601 Main. 1102 Washington. D.C. 20005
Spokane. WA 99201
Craig F. Schaucrmann Thomas C. Phelan
SCHAUERMANN & THAYER Attorney at Law
1700 E. Fourth Plain Blvd 806 Officers Row
Vancouver. WA 98661 Vancouver, WA 98661
Executed this 6th dav of March. 1995, at Spokane.
Washington
| declare under penalty of perjury. pursuant to the laws of
the State of Washington, that the foregoing ts truc and correct
s/
Marcia M Meade
158-A
RECEIVED
OFFICE OF THE CLERK
U.S. COURT OF APPEALS
1995 FEB 3 AM 10:33
FILED
DOCKETED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCHUDEL: DANIEL
GLASS: MERLIN E. CARLSON.
TIMOTHY SCHUDEL and
SANDRA SCHUDEL. husband
and wife. and the marital
community composed thercof:
KATHRENE RAE HOWELL:
CRAIG A. THOMPSON:
DEBORAH GUARAGNA: and
JOHN and RUTH HOPKINS.
husband and wife. and the marital
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community composed thercof. )
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NO. CS8-92-0081-FVS
Plaintiffs-Appcllants
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GENERAL ELECTRIC
COMPANY. a foreign corporation:
and KAISER ALUMINUM AND
CHEMICAL CORPORATION. a
forcign corporation,
Defendants-Appellees
United States District Court for the Eastern District
of Washington Civil No. CV-92-00081-FVS
The Honorable Fred Van Sickle. District Judge
159-A
APPELLANT CARLSON'S REPLY TO APPELLEE’S
MEMORANDUM IN OPPOSITION OF REMAND
Marcia M. Meade
Dawson & Meade
W. 1300 Dean Ave.
Spokane. WA 99201-2015
Telephone: (509) 328-4266
Attorney for Plaintiff-
Appellant Carlson
1. NATURE OF MEMORANDUM
Appellant. Merlin Carlson. Jr.. hereby replics to General
Electric Company and Kaiser Aluminum Chemical Corporation
(hereinafter collectively General Electric) bricf in opposition to
Carlson's motion for remand.
Il. SUMMARY OF ARGUMENT
General Electric asserts the subjcct of the motion Is a
matter concerning merits rather than jurisdiction. Mr. Carlson
disagrecs.
General Electric agreed to a special verdict form. Under
FRCP 49(a) General Electric waived the right to submit to another
jury issues of injury and damage. The District Court initiated and
entered its own order for a new trial. General Electric having
waived its right. the District Court was without authority to grant
a new trial on sub-issucs of damages. Gencral Elcctric did not
appcal the District Court's denial of its motions, so questions of
merit by General Electric are moot.
lil. LAW
A There is authority to support a remand bascd upon
jurisdictional crror
Gencral Electric argues:
| |
160-A
"Mr. Carlson has not cited any authority. and
there is none, in support of his attempted circumvention of
the bricfing rules."!2
Mr. Carlson has and does citc authority for his Motion to
Remand for Lack of Jurisdiction. FRCP 49(a) and FRCP 59(d)
are authority. FRCP 49(a) deprives the District Court the
jurisdiction to submit "issucs so omitted" from the special verdict
form to another jury. See FRCP 49(a). Under FRCP 59(d) the
District Court's jurisdiction is limited to specific circumstances.
The District Court's authority is limited to its motions brought
within 10 days of judgment and to rcasons which it might have
granted a new trial to a party. FRCP 59(d).
The District Court did not move on its own initiative
within 10 days of the judgment. Simply. if the partics may not
move. the District Court may not move on its own initiative for a
new trial. The District Court did not have authority to act.
because the partics removed the issue from the District Court's
jurisdiction by opcration of FRCP 49(a).
B. The Issuc is a Matter of Law. Not Underlying Merit
A special verdict form was used. CR 476. ER 1.2.
Gencral Electric neither submitted. objected. or requested an
additional question on injury or damage to Mr. Carlson. General
Electric removed from the District Court's jurisdiction all rights to
submit sub-issucs of neurological or non-ncu rological damages.
FRCP 49(a). FRCP 49(a) is clear and unambiguous--questions
not submitted to the jury are waived by all the partics. FRCP
49(a). Gencral Electric has waived the right to another jury
deciding the damages as to neurological and non-ncurological
damages. The fact of the special verdict is undisputed.
Jurisdictional challenge is not merit dependent. Merlin
Carlson. Jr. has identified the District Court did not have
Jurisdiction to give back what General Electric waived under
FRCP 49(a). Jurisdictionally. when General Electric waived its
right. the District Court lost jurisdiction to order on its own
initiative a new trial to decide sub-damage issues. The fact of the
District Court denial of General Electric's motion for a new trial
!2See General Electric's “Response Brief in Opposition to Appellant Carlson's
Motion or Remand" at page 4 © |
2
161-A
and the District Court initiation and cntry of its own order for a
new trial. can not be disputed. The order speaks for itsclf. CR
571. ER 12.
If the facts arc undisputed it is a question of law. A pure
question of law on jurisdiction can present on a motion. U.S. v.
Nukida. 8 F.3d 665 (9th Cir. 1993). When underlying merit ts not
an issuc the intcrests of judicial cconomy permits resolution on
motion. Nukida at 670. If jurisdiction was fact dependent and
the facts were in dispute. then a full hearing would be necessary.
Nukida at 669. A full appcal is not necessary. because the
jurisdictional issucs are not fact dependent.
C. The Record Docs Not Bear Out General Electric's
Contentions or Arguments.
Here, jurisdiction is not fact dependent. Jurisdiction can
and should be decided. now. Gencral Electric suggest there are
questions of merit. when it states in its Responsive Memorandum:
"The District Court agreed. struck much of Mr. Carlson's
evidence and granted Gencral Electric a new trial with
respect to Mr. Carlson's claim. CR 571."!3
This statement is not truce. CR 571. ER 6-7.11-12. Mr. Carlson's
evidence was not "struck". CR 571, ER 6-7. 11-12. The District
Court did not grant General Electric's motion for a new trial. but
rather the District Court initiated and entered its own order for a
new trial. CR 571. ER 9.10.12. General Electric went on to
state:
"Because |the new trial] the order was squarcly grounded
on Gencral Electric's motion. the lower court had
jurisdiction to enter it.!4
The District Court's ruling is contrary to General Electric's
assertion. It was made very clear the new trial was not grounded
in Gencral Electric's motion. when the District Court ruled:
" The defendants are granted judgment as a matter of
law on all non-ncurological claims asserted by Merlin
!3See footnote | Supra. at page 4 © 2
4Sce footnote | Supra. at page 4 § 2
162-A
Carlson. Those claims are dismissed with prejudice. ...
The defendants arc granted a new trial on all remaining
claims.
6. THE DEFENDANTS' MOTION FOR A NEW
TRIAL OR ALTERNATIVE RELIEF (Ct. Rec. 486)
IS DENIED.
(Emphasis Added)" Sec CR 571, ER 12.
The ruling is clear. The new trial was granted on the District
Court's FRCP 59(d) motion and not Gencral Electric's motion
The order granting a new trial absolutely was not squarcly
grounded on General Electric's motion.
Gencral Electric cites Southern Pac Co. vs US District
Court. 190 F.2d 735 (1951) as supportive of its position. In
Southern Pac. Co. it was specifically found the Court did not
grant a new trial under FRCP 59(d). The authority Gencral
Electric citcs is not applicable-to the indisputable order. hence
record. herein. Pau v. Yosemite Park and Curry Co. 928 F.2d
880 (9th Cir. 1991) and Stradley v. Cortez. 518 F.2d 488 (1975)
are authoritics which do apply to the record hercin. Pau and
Stradley answer affirmatively for Mr. Carlson's position the
Jurisdictional question.
D. On this record General Electric's Challenge Directed
to It Questions of Merit Arc Moot.
Gencral Electric urged Mr. Carlson's appcal was
premature. Since filing the motion for remand the District Court
has certified this matter as appealable. CR unknown. ER 15.16
Further. the District Court recognized challenges to the
jurisdiction on granting a motion for new trial are immediately
appealable. Sce Eaton v. National Stecl Products Co.. 624 F 2d
863. 864 (9th Cir. 1980). CR unknown. ER 16.
Under FRCP 59(d) the District Court's authority was
limited to "reasons for which it might have grantcd a new trial on
motion of a party." FRCP 59d). FRCP 49(a) constrained
General Electric from moving for a new trial on non-ncurological
and ncurological damages. The District Court was likewise
constrained. FRCP 59d) Gencral Electric has not appcaled the
denial of its motion for a new trial on other matters. There arc no
questions of fact as to the application of FRCP 59(d) in this casc
There is no question of fact as to the status of the appeal. The
»
163-A
issuc is purcly a question of law.
Gencral Electric infers the following as to the Motion to Remand:
"{T]he argument that the Court erred in granting General
Electric the relicf which it requested does not risc to a
‘jurisdictional’ argument so as to preclude resolution with
full bricfing on the merits.” '*
Mr. Carlson appealed the District Court's new trial ruling.
CR 584. ER 14. General Electric did not appeal the District
Court's denial of its new trial ruling. General Electric did not
appeal the District Court's denial of its motion to dismiss Mr.
Carlson's neurological damages. Now and forever the merits of
the ncurological vs. non-neurological damages to Mr. Carlson as
to Gencral Electric are not pertinent. The question is purcly of
whether the District Court had jurisdiction to grant a new trial on
sub-issucs of damages.
The issuc. now. is purcly jurisdictional. Either the
District Court had authority to grant a new trial on what was
waived by Gencral Electric or the District Court did not have the
authority. The application of FRCP 49(a) and FRCP 59(d)
created a purcly jurisdictional question. Here. the application of
FRCP 59d) and FRCP 49(a) have not created questions of merit.
IV. CONCLUSION
The application of FRCP 49(a) and FRCP 59(d) do not
involve discretion. The questions posed on Mr. Carlson's Motion
arc purcly questions of law. If the District Court did not have
jurisdiction then the November 25, 1994, order was void as to
Merlin Carlson, Jr. Neither General Electric Company nor Kaiser
Aluminum and Chemical Corporation have appealed the
November 25, 1994. order. Very Simply. Merlin Carlson. Jr.
wants his judgment on the verdict reinstated. A special verdict
form was submitted and used. so appeals such as this could be
avoided. In the interest of judicial economy and duc process Mr.
Carlson urges it is expeditious to dispose of this matter on a
motion to remand with directions to reinstate the yadgment upon
So . .
ISee footnote | Supra. page 4 ©
.
164-A
the verdict in Mr. Carlson's favor.
DATED this 2ND day of February. 1995.
DAWSON & MEADE
/s/
Marcia M. Meade. WSBA 11122
Attomey for Appellant Carlson
165-A
PROOF OF SERVICE BY MAIL
1 am a citizen of the United States and am employed in the
City and County of Spokanc. State of Washington. | am over the
age of 18. and not a party to the within action or proceedings. My
business address 1s that of Dawson & Meade. 1300 W. Dean.
Spokane. Washington 99201.
On February 2nd. 1995. | served the within
APPELLANT CARLSON'S REPLY MEMORANDUM TO
APPELLEES’ MEMORANDUM IN OPPOSITION TO
REMAND
on the partics in said action or proceeding by depositing two true
copies thereof enclosed in a scaled envelope with postage thercon
fully prepaid in the United States mail at Spokane, Washington.
addressed to the attorneys of record for said parties as follows
James B. King Joe G. Hollingsworth
KEEFE. KING SPRIGGS & HOLLINGSWORTH
& BOWMAN 1350 "I" St... NW. 9th Floor
W601 Main. 1102 Washington. D-C. 20005
Spokane. WA 99201
Craig F. Schauermann Thomas C. Phelan
SCHAUERMANN & THAYER Attorney at Law
1700 E. Fourth Plain Blyd 806 Officers Row
Vancouver. WA 98661 Vancouver, WA 9866]
Executed this 2nd day of February. 1995. at Spokane.
Washington
| declare under penalty of perjury. pursuant to the laws of
the State of Washington, that the foregoing is truc and correct.
s/
Marcia M. Meade
4-166
RECEIVED
OFFICE OF THE CLERK
U.S COURT OF APPEALS
1995 FEB 15 AM 11:30
FILED
DOCKETED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCHUDEL: DANIEL
GLASS. MERLIN E. CARLSON:
TIMOTHY SCHUDEL and
SANDRA SCHUDEL. husband
and wife. and the marital
community composed thereof:
KATHRENE RAE HOWELL:
CRAIG A. THOMPSON:
DEBORAH GUARAGNA: and
JOHN and RUTH HOPKINS.
husband and wife. and the marital
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community composed thereof. )
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95-35010
DC CV-92-0081-FVS
Plaintiffs-Appellants.
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GENERAL ELECTRIC
COMPANY. a forcign corporation:
and KAISER ALUMINUM
CORPORATION. a foreign
corporation.
Defendants-Appellces
United States District Court for the Eastern District
of Washington Civil No. CV-92-00081-FVS
The Honorable Fred Van Sickle. District Judge
APPELLANTS-PLAINTIFFS' AND APPELLEE
GUARAGNA'S MEMORANDUM IN OPPOSITION TO
MOTION TO DISMISS
Marcia M. Meade
Dawson & Meade
W. 1300 Dean Ave
Spokane. WA 99201-2015
Telephone: (509) 328-4266
Attomey for Plaintiff-
Appellant Carlson
Craig F. Schauermann
Schauermann & Thayer
1700 NE Fourth Plain Blvd.
Vancouver. WA 98661
Telephone: (360) 695-4244
Attorney for Plaintiff-
Appellants Schudels. Glass
Howell (Frocsc). Thompson
Thomas C. Phelan
806 Officers Row
Vancouver. WA 98661
Telephone: (360) 750-8750
Attormey for Plaintiff-
Appellants Hopkins
1. NATURE OF MEMORANDUM
Appellees. General Electric Company and Kaiscr
Aluminum and Chemical Corporation (hercinafter collectively
referred to as General Electric) made a gencric motion to dismiss
all of Appellants-Plaintiffs' Appeals for want of jurisdiction.
Appellants will show this Court docs. now. have jurisdiction.
Appellants. Glass. Thompson. Schudcl. Schudel. Schudel. Howell
Froese. Hopkins and Hopkins have a common jurisdictional basis
for appeal. (hereinafter Schudel. Schudel. Schudel collectively
referred to as Schudels.) (hereinafter Hopkins and Hopkins
collectively referred to as Hopkins). Appellants Froese and
Hopkins have an additonal jurisdictional basis that is also common
to Appcllant Carlson
tN
en
A-168
Il. SUMMARY OF THE ARGUMENT
Gencral Electric has not meet its burden to show this
Court lacks jurisdiction.
Gencral Electric failed to timely serve Fed. R. Civ. P. 50
and 59 motions. so the District Court lacked jurisdiction to
consider these post-trial motions as to Schudels. Glass.
Thompson, Froese. Hopkins and Guragana. The District Court
lacking jurisdiction. this Court. now. docs have jurisdiction under
the controlling authoritics.
Under Fed. R. Civ. P. 49(a) and 59(d). Appellant Carlson.
along with Froese and Hopkins. have another jurisdictional basis
of appcllate jurisdiction. General Electric waived the right to
challenge the special verdict on omitted sub-issucs. Since General
Electric lacked the right to move for a new trial on omitted issuc.
the District Court could not acquire that basis under Fed. R. Civ.
P. 59(d). Without the authority to act the District Court lacked
the jurisdiction to order a new trial on omitted sub-issucs for
Carlson. Froese and Hopkins
The Appellants’ appeals should not be dismissed. Rather
Appcllants' motions to this Court. to remand and instruct that the
November 25. 1995, order and January 17. 1995 orders be
stricken. should be granted. The only enforccable judgment. now.
remaining for all the Plaintiffs is that of July 13, 1994.
Il. LAW
A. Standard of Review for Procedural Issues.
General Electric failed to identify the standard of review.
Whether it is in District Court or in Appellant Court. Jurisdiction
Is a question of law. U.S. v. Nukida. 8 F.3d 665. 669 (9th Cir
1993). Jurisdictional issucs. including issues of procedure such as
determination of whether a party waived a right to a jury trial on a
sub-issuc and the Court's motions under Fed. R. Civ. P. 56(d). are
reviewed do novo. Westinghouse Electric Corp. v. Newman and
Holzinger. P.C.. 9 92 F.2d 932 (9th Cir. 1993): Delta Countn
Ventures. Inc. v. Magana. 986 F.2d 1260. 1262 (9th Cir 1993):
Dubbs vy CLA. 966 F.2d 1114. 1118 (9th Cir 1989): see also 2
Federal Procedure. L_Ed.. Appeal. Sarschon:. and Review. §
3:652 (1981)
B. Summary of Appeals filed by Appellants-Plaintiffs.
On July 13, 1994, a judgment on special verdicts was
entered in favor of each plaintiff. CR 477, ER 22-25. An order
and judgment of dismissals and new trials were entered on
November 25. 1994. CR 571, 572, ER 27-31. Appellants-
Plaintiffs filed a Notice of Appeal on December 21, 1994. CR
584. ER 34. Then Fed. R. Civ. P. 54 motions were pending. CR
$77 ER 32-33. On January 17, 1995, the District Court entered
an order on those motions. CR 600. ER 43. These Appellants-
Plaintiffs filed an Amended Notice of Appeal on January 27,
1995. CR 669. ER 45. Appellants-Plaintiffs filed another Notice
of Appeal on February 7, 1994. CR 676, ER 47-53.
C. Short Answer
In District Court and on appeals Appellants-Plaintiffs
have asserted the District Court lacked jurisdiction to consider
untimely served Fed. R. Civ. P. 50(b) and 59 motions on the
judgment for Schudels. Glass. Thompson. Froese. and Hopkins.
CR 676. ER 47-53 Appellant Carlson. as well as Hopkins and,
Froese. have asserted the District Court lacked jurisdiction under
Fed. R. Civ. P. 59(d) to order a new trial to determine issucs
omitted from the Special Verdict form. Sce also Fed. R. Civ. P
49(a). In its motion Gencral Electric ignores these challenges to
the District Court's jurisdiction.
Without reservation venerated law holds an order granting
a new trial is reviewable as a final judgment when the district
court's jurisdiction is challenged. Phillips v. Negley. 117 U.S.
665. 6 S.Ct. 901, 29 L.Ed. 1013 (1886): also sec. Jones &
Guerrero Co.. Inc. v. Scalift Pac.. 650 F.2d 1072. 1073 (9th Cir.
1981).
The District Court ruled that the order final based on the
jurisdictional challenges. CR 600, ER 42. 43. Accord Eaton v.
National Stcel Production Co.. 624 F.2d 863, 864 (9th Cir. 1980).
Unlike General Electric. the District Court noted the general
premise, that a order granting a new trial is interlocutory, has an
exception when a new trial under Fed. R. Civ. P. 56(d) is
challenged on jurisdictional grounds. Eaton at 864.
4
A-170
D. A Motion To Dismiss Is Improper Under the
Record and Law.
In District Court General Electric had notice of
jurisdictional challenges. In moving General Electric relics on
Eaton v. Nat'l Stecl Products Co. The Eaton Court clearly states
the law at 624 F.2d at 864:
Though an exception to this rule [new trial orders
are intcrlocutory| has been recognized when the
district court grants a new trail when it has not
Jurisdiction to do so. . . . (cites omitted)
In this case the District Court ruled jurisdictional challenges result
in final decisions for purposes of appcal. Additionally. the
District Court certified the order as to all Appcellant-Plaintiffs
under Fed. R. Civ. P. 54(b). Given the record why has Gencral
Electric moved to dismiss to dismiss the appeals. its included
The judgment for Schudels. Glass. Thompson. Froese.
Hopkins. and Guaragna was entered on July 13. 1994. When the
post-trial motions were not timely served by General Electric as to
those plaintiffs. the District Court lost Jurisdiction to consider
those post-trial motions. Additionally. the time for filing appeals
Was not tolled. The time for General Electric to file an appeal ran
on August 12. 1994. Fed. R. App. P. 4(a). Thereafter. General
Electric failed to file appeals as to Schudels. Glass. Thompson.
Froese. Hopkins and failed to timely file as to Appelice
Guaragana.
Only Appellant Carlson was timely served with the post-
trial motions. On November 25, 1994, the District Court granted
anew trial under Rule 59(d) on grounds not available to Gencral
Electric or the District Court. On November 25. 1994. the
District Court specifically denied General Electric's motion for a
new trial as to Appellant Carlson. Once the District Court ruled
on the timely Carlson's motions, the appcals clock began ticking
Again. General Electric had notice of a jurisdictional challenge
and the finality of the November 25. 1994, order. General
Electric's time to file an appeal as to Carlson ran on December 27,
A-171
1904! General Electric failed to file any appeal as to Carlson
By January 17, 1995 all Appcllants-Plaintiffs moved this
Court to remand and instructed the District Court to strike the
November 25, 1994, amended judgment. and. Appellee-Guaragna
moved to strike the only appeal General Electric has filed for lack
of jurisdiction. Thereafter General Electric only files an appeal as
to Guaranga's judgment. In response to the order and these
motions General Electric without acknowledging the jurisdictional
challenges to the District Court's authority. moves to dismiss the
Appcllants-Plaintiffs appeals for lack of jurisdiction
Perhaps General Electric's Motion to Dismiss ts a veiled
attempt bootstrap issues that General Electric 1s now time barred
from bringing. On January 31, 1995, General Electric knew its
failure to take mandatory appeals as to all 10 Plaintiffs As
General Electric noted "timely notice of appeal 1s mandatory and
jurisdictional "2 Hav ing lost the opportunity to file an appeal as
to any of the Plaintiffs. General Electric 1s using smoke and
mirrors, rather than the record and the law. to gain a foot hold in
District Court
E Appellee-Guargana has not appealed.
Appellce Guaragna did not appeal Appellee Guaragna
docs not know why General Electric would move to dismiss its
own appeal
General Electric failed to toll the time for filing an appeal
from the July 13, 1994, judgment by not timely filing Fed R Civ
P. 50(b) and Fed. R. Civ. P. 59 motions. General Electric was
required to file a notice of appeal by August 12. 1994. General
Electric has failed to meet that junsdictional requirement
Appellee Guaragna has currently pending a motion to dismiss
General Electric's appeal for lack of jurisdiction
I Vhe time ran on December 25, 1994. but General Flectne gained two days
because of a holiday
2 General Flectne’s Memorandum in Support of Motion to Dismiss Appeal at
page © citing as authonty Browder v_ Director, Depot Corrections . 44 US
257, 204 (1978)
6
A-172
F. The January 17 Order Certified Under Rule $4 All
Plaintiffs’ Right to Appeal
Gencral Electric states: "On the question of ‘judgment’ as
to the latter four [Hopkins. Hopkins. Froese and Carlson]. the
Court explicitly held "3 This is inaccurate and misicading
The District Court did not "hold" what General Electric asserts to
this Court. Rather the District Court applicd an "Jajnalysis” to
Appellants. Hopkins’. Hopkins’. Frocse’s and Carlson's "|r]chef
[rjequest”. CR 600, ER 38.42.43. Not only has General Electric
improperly couched an "analysis" as an “holding”. the analysis 1s
offered out of its total context. General Electric's argument fails
When the analysis is in context
General Electric never explains why or how this Court
can ignore the District Court's recognition that
An order granting a new trial ts interlocutor As
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