# Appendix VOL II — Schudel v. General Electric Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2290%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix VOL II - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1094 ## Text F Supreme Court, 0.8. a» FILED ww / ~ 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 EEO 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 EEE 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 6 143-A 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. 8 145-A 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 9 146-A 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 ; i 148-A 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 C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2290%3A3. Public record. Not legal advice.