Reply Brief — Schudel v. General Electric Co.

ae Supreme Court, U.S. 7)

) tt. & SD

: a - APR 10 1998 a

No. 97-1410 <

CLERK |

In The

Supreme Court of the United States

October Term, 1997

-

MERLIN E. CARLSON, JR.,

Petitioner,

GENERAL ELECTRIC COMPANY, a foreign corporation,

KAISER ALUMINUM AND CHEMICAL

CORPORATION, a foreign corporation,

Respondents.

e

On Petition For Writ Of Certiorari |

To The United States Court Of Appeals |

For The Ninth Circuit

e

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

*

Marcia M. MEADE

Attorney for Petitioner/

Counsel of Record

Dawson & MEADE

1300 W. Dean

Spokane, Washington 99201-2015

(509) 328-4266

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Il.

IV.

TABLE OF CONTENTS

Page

ee ay ts bs kk 55555 oboe see ceien snk 1

REPLY TO STATEMENT OF CASE........... 1

REPLY TO OPPOSITION ARGUMENTS...... 2

A. A New Trial Motion Under Rule 50(b)

Does Not Automatically Attach To A

Motion For Judgment Notwithstanding

Ce ae ae Cn es

B. The Erie Doctrine Has Not Been

Addressed In Reference To Daubert, 509

DRE Ga iis i ge

C. GE’s Circular Argument Does Not

Address The Conflict Over Daubert, 509

Wah DF AMTICHHOM ..... oo... 5 cence ees

CMI buh VAG saris ensues hea cacd.

li

TABLE OF AUTHORITIES

CASES

Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33

i Pe eae ey

SIRO)... 0. 00 ved ceke pan enee dene eee een ee aa

Chicago & North Western Railway Co. v. Britten, 301

F2a 00 Gills Cie BO kic vss ceeeceiescens os:

Daubert v. Merrell-Dow, 509 U.S. 579, 113 S.Ct. 2786

CROGED os cuss se ae os oe ee

Daubert v. Merrell-Dow, 43 F.3d 1311 (9th Cir. 1995)

Dawsey v. Olin Corp., 782 F.2d 1254 (5th Cir. 1986)

Eaton v. Nat’! Steel Production Co., 624 F.2d 863 (9th

Cie. SOUP oc. sin accdiusnae sane Glee

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).....

Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct.

3666, SD Ld. DEPP CPUs os oie ks ca cnserecwis

Hanna v. Plummer, 380 U.S. 460 (1964)...........

Hopkins v. Dow Corning Corp., 33 F.3d 116 (9th Cir.

SOE... o..4 0500600 caches eae an Ome eel ees

Jackson v. Wilson Trucking Co., 243 F.2d 212 (D.C.

Oe. BROOD conv kncenyes avenuecbenmeesaerceas

Joiner v. General Elec. Co., __ U.S. __, 118 S.Ct.

DEE CRITE xs vain etiwetenes cee eee

Lust v. Merrell Dow Pharms., Inc., 89 F.2d 594 (9th

Ce: SI Ss kek dds een cues caawee ek eceae ae

Marbled Murrelet v. Babbit, 83 F.3d 1060 (9th Cir.

NOUN Sk cance pneevennunekeneen een

lil

TABLE OF AUTHORITIES - Continued

Page

Peterman v. Chicago, Rock Island & Pacific R.R. Co.,

493 F.2d 88 (8th Cir.), cert. denied, 417 U.S. 947

MN Gla tres Gin ke Sah Gah bal ase ey poh ae chee o 2

Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed.

NE a i CBOs ska ok baa 6 ein oa b bdls-o.0's 4 e's 2

Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th Cir.

Ee Grey asso kd dos UES ak Keb as ee Pas 6 kos 5

Schudel v. General Elec. Co., 120 F.3d 991 (9th Cir.

ie eh kA oa ia ng dt ann ek eis sens 4, 5, 6, 7, 8

Stradley v. Cortez, 518 F.2d 488 (3rd Cir. 1975)........ 2

Stutzman v. CRST, Inc., 997 F.2d 291 (7th Cir. 1993) ..... 6

Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961)......... 2

Court Rutes, Statutes, REGULATIONS

Federal Rule of Civil Procedure 1.......... eee 10

Federal Rule of Civil Procedure 49(a)........... passim

Federal Rule of Civil Procedure 50............ 1, 4, 8, 9

Federal Rule of Civil Procedure 50(b)......... ie a

Federal Rule of Civil Procedure 50(c) ................ 2

Federal Rule of Civil Procedure 59................. 2

Federal Rule of Civil Procedure 59(b)................ 3

Federal Rule of Civil Procedure 59(d)........... passim

ee es oss oa dew aae eek 5, 6

I bk ec Wade evans bch ewe y aoe aee’s 4

eee ee 1, 3

iv

TABLE OF AUTHORITIES - Continued

Page

PS OM ee er ree eer ee ree rere ey: 1

Wash. Admin. Code 296-20-220 .........ccscccecesces 1

Wash. Admin. Code 296-62-07515 ................04.5. 1

sii

I. INTRODUCTION

In the Ninth Circuit Court of Appeals General Elec-

tric Company and Kaiser Aluminum and Chemical Cor-

~ poration (herein collectively “GE”) avoided Merlin

Carlson, Jr.’s (herein “Carlson”) jurisdictional challenge

to the district court’s authority. Until the Brief in Opposi-

tion!, GE failed to acknowledge the matters Carlson

raised concerning Federal Rules for Civil Procedure

(herein “Rule”) 49(a), 50(b) and 59(d).

In other cases involving GE and in the appeal below

GE has approached differently matters in reference to

Daubert v. Merrell-Dow, 509 U.S. 579, 113 S.Ct. 2786 (1993).

In opposing Carlson, GE raises new positions to steer this

Court away from consideration of the issues surrounding

Rules 49(a), 50 and 59. GE attributes arguments to Car-

Ison that he neither makes nor advocates.

Il. REPLY TO STATEMENT OF CASE

GE compresses the margins of this record. Carlson

observes the chemicals involved are closely regulated by

federal and state governments. These chemicals are rec-

ognized by governments to be exceedingly dangerous to

humans. See, e.g., 29 U.S.C. § 1910.1000 et seq.; 29 U.S.C.

§ 1910.1499; and Wash. Admin. Code 296-62-07515.

GE scoffs at Dr. Lantsberger’s opinion on “whole

body aggravation”. These chemicals effect the entire

body. In Washington physicians who treat injured

workers, are expected to understand the concept of “total

body impairment.” See Wash. Admin. Code 296-20-220.

Despite GE, Carlson’s record amply and specifically

supports every facet of his claim and legal positions.

1 GE’s Brief in Opposition will be referred to as “Br. Opp.”.

Reference to the appendix will be to those submitted by Carlson

in Volumes I and Volume II. References will be “A-#”.

ve

2

Ill. REPLY TO OPPOSITION ARGUMENTS

A. A New Trial Motion Under Rule 50(b) Does Not

Automatically Attach To A Motion for Judgment

Notwithstanding the Verdict

GE does not acknowledge the bottom line law that:

If, on the other hand, the order made was with-

out jurisdiction on the part of the court making

it, then it is a proceeding which must be the

subject of review by an appellate court.

See, Phillips v. Negley, 117 U.S. 665, 671-72 (1886).2

GE, now® argues that Carlson incorrectly reasons that

the district court ruled under Rule 59(d). (Br. Opp. 5 n. 3).

GE bootstraps a position by citing the Schudel Court's

unsupported conclusion that the new trial order was

under Rule 50(b). The record is unsupported because GE

failed to request a new trial under Rule 50(b). (A-101, 102)

Implicitly, GE’s new position is that all J.N.O.V.

motions include a motion for a new trial. If this was true,

then the Rule 50(b) language — “[a] motion for a new trial

under Rule 59 may be joined with a renewal of the

motion for judgment as a matter of law, or a new trial

may be requested in the alternative” — is surplusage.

(A-66, 67) If a new trial motion is automatically attached

to a J.N.O.V. motion, then why have the above language

in Rule 50(b)? See Jackson, 243 F.2d at 216.

2 This exception has been consistently endorsed. See, Eaton

v. Nat'l Steel Prod. Co., 624 F.2d 863 (9th Cir. 1980); Peterman v.

Chicago, Rock Island & Pacific RR Co., 493 F.2d 88 (8th Cir.), cert.

denied, 417 U.S. 947 (1974); Stradley v. Cortez, 518 F.2d 488 (3rd

Cir. 1975); Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961); Jackson v.

Wilson Trucking Corp., 243 F.2d 212 (D.C. Cir. 1957); Chicago &

North Western Railway Co. v. Britten, 301 F.2d 400 (8th Cir. 1962).

3 GE argued Rule 50(c) to the Schudel Court. It was unfair to

claim Carlson has asserted Rule 50(c), when he did not. Schudel

incorrectly attributed a Rule 50(c) analysis to Carlson.

3

GE’s argument is necessary because the Rule 59(b)

motion was denied. (A-43) The order is silent on which

rule granted the new trial. Pushing that a new trial

motion is automatic with a J.N.O.V., GE ignores that

otherwise there is only one legally plausible conclusion.

That is, the court sua sponte moved for and granted a new

trial on its own initiative.

Under Rule 50(b) the district court has no authority

to initiate its own motion for a new trial. In contrast,

under Rule 59(d), the district court had provisional

authority to move and grant a new trial for a reason that

it might have granted a new trial for a party. However, in

light of the Rule 49(a) verdict, this district court lacked

authority to grant a new trial on waived issues. Foremost,

the district court only had ten days to move. The district

court waited 134 days post-trial to move. In every

respect, the district court lacked jurisdiction to grant a

new trial under either Rule 50(b) or 59(d).

When Carlson challenged the authority to grant a

new trial, the district court acknowledged the right of an

immediate appeal. (A-48; A-108 to 111; A-114, 115).

Opposing certiorari jurisdiction, GE travels down an irrel-

evant appellate road and illogically relies on Allied Chem.

Corp. v. Daiflon, Inc., 449 U.S. 33 (1980), to thwart review.

A jury decided GE acted wrongfully. Nine years ago,

Carlson was repeatedly exposed to 5 to 10 times the

permissible exposure limits to a score of chemicals. The

jury and the district court agreed Carlson proved neuro-

logical damage. The neurological injury means Carlson

cannot live independently. He cannot work. He needs

daily care and medical care. The trial lasted three months.

He spent hundreds of thousands of dollars to prove his

case. The jury verdict was three and one half years ago. If

no one will hear Carlson’s challenge, justice will be three

years and thousands of dollars later. Carlson’s due pro-

cess has been ignored. GE fails to provide any reason

4

why this jurisdiction challenge should continue to be

ignored.

Carlson’s problem is not unique. If Rule 49(a) can be

overuled by a district court disagreeing wiht expert “con-

clusions” under Daubert, new trial orders will run amoke.

B. The Erie Doctrine Has Not Been Addressed In

Reference To Daubert, 509 U.S. 579

Avoiding the Erie Doctrine implications as to Rules

49(a), 50(b) and 59(d), GE’s new approach‘ begins by

stating Carlson “mocks the purpose of the Daubert

inquiry.” (Br. Opp. at 11) GE’s new tactic spotlights the

need for review. For long ago, it was observed that

“[mJany errors, of a truth, consist merely in the applica-

tion of the wrong names of things.”>

Redefining the matter, GE tries to steer this Court

away from deciding whether Daubert, 509 U.S. 579 is a

rule of admissibility, sufficiency or both. Despite GE’s

depictions, Carlson asserts that after the opinion is admit-

ted under Daubert, the courts in using Rules 49(a), 50 and

59(d) must apply state substantive law to test sufficiency.

GE states “Congress has mandated that such Rule

[702] be followed.” (Br. Opp. at 10) Standing alone GE’s

statement ignores the overriding Congressional mandate

that “[s]uch rules shall not abridge, enlarge or modify

any substantive right.” 20 U.S.C. § 2072(b). Practically,

GE’s position enlarges a chemical defendant’s power

4 It is noteworthy that GE’s pre-Opposition Brief position

on “how” Daubert is to be used in Schudel v. General Elec. Co. was

measurably different than the GE’s position in Joiner v. General

Elec. Co., __ U.S. __, 118 S.Ct. 512 (1997). Carlson questions

whether GE is now taking a third position as to Daubert’s

application.

> Ethics, Il, 47, Baruch Spinoza (1677).

tbe eaacas aaa

5

while abridging the rights of persons poisoned by chemi-

cals. Questions presented call for defining how admis-

sibility under the federal rules can be harmonized with

state substantive law controlling the sufficiency of proof.

GE’s oversimplistic view advocates that judicial decisions

| are rote rather than a considered analysis. GE disavows

| the principles flowing from Erie R.R. Co. v. Tompkins, 304

U.S. 64 (1938), including:

[T]he message of [Guaranty Trust Co., v.] York

[326 U.S. 99] itself is that choices between state

and federal law are to be made not by applica-

tion of any automatic, “litmus paper” criterion,

but rather by reference to the policies underly-

ing the Erie rule.

See Hanna v. Plummer, 380 U.S. 460, 467 (1964). GE’s tact is

unwise and unworkable in diversity actions.

It is true this Court observed in Daubert v. Merrell

Dow, 509 U.S. 579 (1993) that the Federal Rules of Evi-

dence, being procedural, the Erie Doctrine need not be

addressed when considering Fed. R. Evid. Rule 702. 509

U.S. at 589 n.6. Passing Carlson’s issues off as minor, GE

defines the matter as “highly fact-bound.” The problems

for litigants are that: (1) some federal courts are consider-

ing state substantive law in considering “relevancy” for

purposes of admissibility; and (2) some federal courts are

using state substantive law to determine admissibility;

y and (3) other courts are using Daubert to test sufficiency

of causation proof. GE skirts the need to have predictable

} and stable diversity jurisdiction.

Counter to GE’s notation, the Schudel Court raised no

new issues is GE’s reference to Scott v. Sears, Roebuck &

Co., 789 F.2d 1052 (4th Cir. 1986). Pre-Daubert, the Scott

Court repeatedly considered state substantive law in

resolving the question of admissibility under Rule 702.

See 789 F.2d at 1054 and 1055-56. In referencing Scott, is

GE conceding or disputing that after Daubert the courts

6

consider substantive law in determining the relevancy of

proffered expert opinions for purposes of admission?

GE’s monologue is that Stutzman v. CRST, Inc., 997

F.2d 291, 296 (7th Cir. 1993) disposes of Carlson’s issues.

Stutzman never mentions, much less discusses, Daubert’s

implication to Erie Doctrine consideration. The Stutzman

analysis does not rationalize the Schudel Courts use of

Daubert to test the sufficiency. Stutzman specifically rea-

soned “the Federal Rules do not contain any threshold

level of certainty requirement.” Stutzman distinguished

between tests for admissibility and sufficiency. Schudel as

have other Ninth Circuit panels,6 made no such distinc-

tion. The Seventh Circuit recognized “[u]nder the Federal

Rules, certainty is an issue for the jury and does not affect

admissibility. 997 F.2d at 296. In contrast, what Schudel

and Daubert, 43 F.3d at 1320 believe encompasses “admis-

sibility”, is in direct conflict with the Seventh Circuit.”

The Seventh Circuit distinguishes between testing

admissibility and sufficiency. Stuzman and the Ninth Cir-

cuit classify the task of admissibility as procedural; there-

fore, federal law applies. At this point, the circuits

diverge. Stutzman, 997 F.2d at 296 holds:

“Rule 702 does not require ‘that an expert’s

opinion testimony be expressed in terms of a

reasonable scientific certainty in order to be

admissible . . . ” (Emphasis Added.)

6 For example, Daubert v. Merrell Dow Pharm., Inc., 43 F.3d

1311 (9th Cir. 1995) views admissibility in terms of substantive

state law. Another panel distinguished between a Daubert

admissibility challenge and a challenge to the sufficiency of

proof. Marbled Murrelet v. Babbit, 83 F.3d 1060 (9th Cir. 1996).

7 It is erroneous for GE to hint that Carlson’s causation

proof was inadequate. The district court held proof of Carlson’s

neurological injury was sufficient. (A-31, 32).

~-

/

Contrarily, some Ninth Circuit panels have set a vari-

ety of “creditability”, i.e., sufficiency, test in the context

of a Daubert challenge. Some panels hold admissibility

involves the court weighing whether an opinion meets

state substantive law requirements. 43 F.3d at 1320.

Another panel held admissibility involves whether the

opinion was developed independent of litigation. Lust v.

Merrell Dow Pharms., Inc., 89 F.2d 594, 597 (9th Cir. 1989).

These divergent views of admissibility conflict with

Stutzman, other Ninth Circuit panels and other circuits.®

Given GE’s present position on how Daubert is

applied, its citation to Dawsey v. Olin Corp., 782 F.2d 1254

(5th Cir. 1986) is curious.? After a special verdict, Dawsey

recognized that “the jury and not trial court was charged

with determining whether any damages occurred... ”

Dawsey, 1260. Unlike the Dawsey’s analysis, GE, as do

some of the Ninth Circuit panels inter alia Schudel,

switches between the tasks oc testing for admissibility

and sufficiency without comment. Carlson submits the

random appellate switching accounts for the confusion

and lack of outcome predictability in district courts.

C. GE’s Circular Argument Does Not Address The

Conflict Over Daubert, 509 U.S. 579 Application

On appeal GE lumps the plaintiffs together.!° For an

obvious reason in opposing any certiorari jurisdiction, GE

8 Hopkins v. Dow Corning Corp., 33 F.3d 116 (9th Cir. 1994)

and Ambroosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996).

9 Perhaps GE cites Dawsey to generate the impression of

inadequate proof. On the contrary, Carlson had early, consistent

on-going, objective, independent and verifiable proof he was

poisoned and injured.

10 Pre-appeal plaintiffs were treated as separately

represented. Then, in a monumental blunder, GE failed to

timely serve all plaintiffs but Carlson with the post-trial

te aii areata ieee

ae RN Se ee ee

8

attempts to circumvent review by sideswiping Carlson’s

issues. GE’s new circular Daubert argument is that chal-

lenges to the sufficiency of proof are subsumed by an

“admissibility analysis” under Daubert. The circular argu-

ment facilitates GE’s ability to avoid the questions pre-

sented in reference to Rules 49(a), 50 and 59(d).

First, GE lines up its cross examination as if it was

the only proof. (Br. Opp. at 4-5). GE seeks to make the

matter so “highly fact bound” that certiorari ju. .sdiction

will not be granted. (Br. Opp. 4-5, 11). Discouraging

review, GE alludes that Carlson’s proof lacked quality. Id.

On this record nothing could be further from the truth.”

GE buffaloed the Schudel Courts into ignoring three

months of “quality” evidence, including that: (1) organic

solvents are “classic CNS depressants” (A-202); (2) the

“neurological symptoms experienced by these workers

are consistent with those associated with organic sol-

vents” (A-188, A-217, 218);!2 (3) “[mJost reports of sol-

vent-related encephalopathy describe . . . very high short-

term exposure with loss of consciousness” (A-188); (4) the

motions. Marcia M. Meade has always ONLY represented

Carlson. The blunder resulted in GE persistently blurring

Carlson’s case with the other nine plaintiffs to maintain a fiction

that Ms. Meade accepted service for all plaintiffs.

11 Despite GE’s representation, a pre-trial Daubert hearing

occurred. Carlson did produce pre-trial proffers on the scientific

basis and methodology of the expert witnesses. Carlson’s proof

addressed GE’s distorted position that there were only five

known neurotoxic organic solvents, e.g., A-183 to 192, A-195 to

198, 200 to 204; A-224, 226 to 231.

12 In arguing only five known neurotoxic organic solvents

exist, GE leaves out the scientific fact that organic solvents

injure by two different mechanisms by: (1) direct action on the

nervous ceil and, (2) causing cerebral hypoxia from loss of

consciousness. GE’s scientific shell game illustrates why the test

of admissibility MUST be directed away from conclusions.

9

respiratory symptoms resulted from either the organic

solvents, sodium hydroxide or the combination of respi-

ratory irritants (A-189, A-232); and, (5) unprotected expo-

sure was to a score of federally regulated hazardous

chemicals for times and levels beyond those permitted.!5

Second, GE writes off the Erie Doctrine questions tied

to Rules 49(a), 50 and 59(d) by observing Daubert was a

diversity case, where California had a different admis-

sibility standard. (Br. Opp. 10) Third, GE insinuates Car-

lson’s proof lacked “probable” medical testimony.

Carlson did have the requisite competent medical proof.

GE glosses over that pre-trial, in-trial, and post-trial the

district court found Carlson’s experts did meet the most

stringent Daubert testing. Fourth, GE minimizes the con-

flicts over Daubert’s application as merely different fact

patterns. Fifth, GE argues Daubert narrows the potential

expert testimony. Sixth, GE returns to its belief that its

cross-examination was the beginning and end of any

Daubert analysis. Then in a leap from the Daubert

“gatekeeper” role to testing sufficiency, GE takes the sev-

enth and final step. This circular argument underscores

13 Carlson has identified the hazardous chemicals. See p. 5

footnote 3. GE suggest the injury of Carlson is tenuous. If one

thinks about why and how the federal government regulates

exposure to these chemicals, it is disingenuous that GE’s

attempt to disenfranchise the legal questions by hinting injury is

problematic. Consider for example the regulation of two

of the scores of chemicals at the clean-up. Exposure

to perchoroethtylene (PERC), which is also called

Tetrachloroethylene, is limited in any eight hour work period to

5 minutes in any 3 hour period of not more than 300 parts per

million. 29 C.F.R. § 1910.1000 Table Z-2. Sodium hydroxide

limits are 2 mg per cubic meter of air. § 1910.1000 Table Z-1. Like

the PERC and Sodium Hydroxide, the score of hazardous

chemicals exposure limits are listed under § 1910.1000.

10

why this Court must define “what” Daubert is testing and

“how” the Erie Doctrine may apply.

The absurd results of GE’s circular argument are not

unique to Carlson if Daubert is both a test for admis-

sibility and sufficiency. Under GE’s theory, a party will

never know whether a consistent Rule 49(a) verdict will

be upheld. Uncertainty will exist despite a finding that an

expert’s methodology and scientific principles meet

Daubert’s requirements for admissibility. In a nutshell,

GE’s circular argument allows post-trial judicial second

guessing under a Daubert sufficiency test. Carlson does

not believe that is what this Court intended to be done

-with Daubert v. Merrell Dow, 509 U.S. 579.

Iii. CONCLUSION

It is obvious GE does not want this Court to review

this case. Carlson believes it is because this record dem-

onstrates how out of control litigation can become, when

the courts are confused and in conflict over Daubert v.

Merrell Dow, 509 U.S. 579 (1993). The purpose of Federal

Rule of Civil Procedure 1 will be better served for the

greatest number of litigants, if this Court addresses the

matters now.

Respectfully submitted this 9th day of April 1998.

Marcia M. Meape, WSBA #11122

Attorney for Petitioner

Merlin E. Carlson, Jr.