Opposition Brief — Volkswagen of America, Inc. v. Trull

a ~ Supreme Court, us, |

{ FICED

No. 02-1677 JUN 9 - 2003

OFFICE OF THE CLERK |

IN THE —

Supreme Court of the United States

VOLKSWAGEN OF AMERICA, INC., et al.,

Petitioners,

v.

NATHANIEL TRULL, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE First CIRCUIT

BRIEF IN OPPOSITION

EpwarbD M. Swartz

Davip P. ANGUEIRA*

ALAN L. CANTOR

Swartz & SWARTZ

10 Marshall Street

Boston, MA 02108

(617) 742-1900

* Counsel of Record Counsel for Respondents

181212 ce

COUNSEL PRESS :

(800) 274-3321 * (800) 359-6859

1

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................... il

Pe 5-55 So ic Shei oe sas Vv

Counter-Statement of the Case ................. l

Reasons for Denying the Petition ............... 4

RRR NE IN OeP re ere Rarer r aA 4

Il. The Case Was Correctly Decided Below

beg ala a ea ni ne ee ace S 9

A. Volkswagen’s Failure To Comply With

Fed. R. Civ. P. 51 Precludes Considera-

tion Of The Issues It Raises Pursuant To

Pe es ks oe oo caw eawes Gg

B. No Construction Of Rule 49 Would

Serve To Preserve Volkswagen’s

Contention That The Verdict Is

so Re ae eee ate 13

CE Salou od aw oe an Ont tens bah eee es 17

ii

TABLE OF CITED AUTHORITIES

Page

Cases:

City of Springfield, Massachusetts v. Kibbe,

480 U.S. 257, reh. denied, 481 U.S. 10311 (1987)

Teer re re ee ene 13

Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283

(11th Cir. 2002), cert. denied, 123 S. Ct. 868

CQOED) =. scans susviasetacape eee 14

Harris v. Roadway Express, Inc., 923 F.2d 59

Chl Ce SIG ED cnn ccdswteeceedete cee 14

Herman v. Hess Oil Virgin Islands Corp., 524 F.2d

POT COO UM. Bie) x x kana eneaeaenaeee ss 14

Holloway v. McIntyre, 1988 WL 7961 (6th Cir.)

rr re ee ee: 11,12

Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir.),

cert. denied, 123 S. Ct. 539 (2002) ........... 16

Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d

OS C6 Coe BOG SE osc octane eee 11, 12

- Merchant v. Ruhle, 740 F.2d 86 (ist Cir. 1984) ... 14

Mid-America Food Service, Inc. v. ARA Services,

fac., $76 F.26 Got (OG Cie. 19 7E) .. .. cannes: 14

He

Cited Authorities

Page

Parker v. Champion, 148 F.3d 1219 (10th Cir.

ei a Wi, 6k aa a5 88 Was We WACO 14

Thibault v. Sears Roebuck & Co., 118 N.H. 802,

395 A.2d 843 (1978) ..... eee ee ana ee 15

United States v. Baybank (Houston), Inc., 934 F.2d

es chewed vw sen en eae 14

United States v. Celestine, 2002 WL 1821971

(4th Cir.), cert. denied, 123 S. Ct. 706 (2002) .. 14

United States v. Kakley, 741 F.2d 1 (1st Cir.), cert.

denied, 469 U.S. 887 (1984) ................ 14

United States v. Muskovsky, 863 F.2d 1319 (7th Cir.

1988), cert. denied, 489 U.S. 1067 (1989) ..... 14

United States v. Taylor, 2003 WL 1459140 (9th Cir.)

pe ae a 14

United States v. Wiggins, 530 F.2d 1018 (D.C. Cir.

ERE eee ae 14

United States v. Young, 745 F.2d 733 (2d Cir. 1984),

cert. denied, 470 U.S. 1084 (1985) ........... 14

Weiner v. Roll Form, Inc., 744 F.2d 797 (Fed. Cir.

1984), cert. denied, 470 U.S. 1084 (1985) ..... 14

Wilson v. Bradlees of New England, Inc., 250 F.3d

es a ay se vk woe Ke 6 4s 10

iv

Cited Authorities

Page

Rules:

See eee ey re rere passim

Pee Be Ra Eo Seve og cd kbbuasedavess 4, 435-8

Re 8 Be re rte er errr tre 7, 15, 16

PO I RE £6 Re encnds cae me eieerees: passim

TABLE OFAPPENDICES

Page

Appendix A— Excerpts Of Defendants’ Request For

Py TI. 5 os oh a ees la

Appendix B — Excerpts Of Volkswagen’s Closing

I 55 5S a ee 3a

PER eee Fede eee ook be ee eee 4a

Appendix D — Excerpts Of Jury Instructions ..... 7a

1

COUNTER-STATEMENT OF THE CASE

It is respectfully submitted that, based on the established

facts, the controlling law and the procedural history of this case,

further appellate review by this Honorable Court is not

warranted. An experienced and distinguished district court judge,

Joseph A. DiClerico, presided at the trial and ruled on the post-

trial motions. A seasoned and eminent panel of the First Circuit

Court of Appeals heard Volkswagen’s appeal. These courts

concluded that Volkswagen failed to protect the record in this

case on multiple occasions, thus waiving the position it now

argues. These rulings were based not only on established First

Circuit principles which have been settled for decades, but also

on a universally accepted construction of Rule 51 of the Federal

Rules of Civil Procedure. Moreover, both the district judge and

the First Circuit concluded that Volkswagen had asserted

disingenuous arguments and had misstated the record.

That approach has continued in Volkswagen’s Petition for Writ

of Certiorari.

This product liability case arising out of an incident in which

one child was killed and another child was brain injured was

tried twice in the United States District Court for the District of

' New Hampshire. The case was originally filed in January 1994

and first went to trial in May 1998 before Judge DiClerico.

In that first trial, the jury returned a verdict for Volkswagen.

The Trulls appealed, contending that the district court erred in its

instructions to the jury as to who bears the burden of proof in

a crashworthiness case relating to enhancement of injuries.

The First Circuit Court of Appeals certified that issue to the New

Hampshire Supreme Court. 7rull v. Volkswagen of America,

Inc., 187 F.3d 88 (1st Cir. 1999). The Supreme Court of New

Hampshire agreed with plaintiffs’ position, and reiterated the

concept that under New Hampshire law, it is appropriate in a

2

product liability case to submit both the theories of negligence ©

and strict liability to the jury. 7rull v. Volkswagen of America,

Inc., 761 A.2d 477 (N.H. 2000). The First Circuit then

remanded the matter to the district court for a new trial. Trull v.

Volkswagen of America, Inc., 229 F.3d 343 (1st Cir. 2000).

The second trial began in April 2001, again before Judge

DiClerico. The plaintiffs claimed that the 1986 Volkswagen

Vanagon was negligently designed and tested and was defective

in that rear seat passengers were provided with lap only belts

despite the fact that rear shoulder harnesses were standard

equipment in the Vanagon sold in Europe, in other Volkswagen

vehicles sold in this country and could have easily been

incorporated into the Vanagon sold in the United States.

The case was submitted to the jury on the eleventh day of trial.

Volkswagen requested a jury instruction indicating the Trulls

could win the case by prevailing on either their strict liability or

their negligence claim. Volkswagen’s request read, in pertinent

part:

Plaintiffs have brought this case under two theories

of liability: (a) strict liability in tort; and (b} negligence;

You may return a verdict for plaintiffs on either one

or both of these theories. App., infra, 1a-2a.

In accordance with Volkswagen’s request and pursuant to

the agreement of the parties, the trial court instructed the jury six

times that the Trulls could recover on either the basis of strict

liability or negligence and that they need only prove one of these

claims in order to recover (VW App., 37a-46a). Volkswagen

did not object. The parties agreed to a special verdict form which

specifically instructed the jury to decide the negligence claim even

if it answered “No” on the strict liability claim (VW App., 34a-

3

36a). Volkswagen did not object. The jury returned a verdict

finding “Yes” on negligence and “No” on strict liability and

awarded damages. Volkswagen did not cject or claim that the

verdict was inconsistent prior to the discharge of the jury. After

the jury was discharged, Volkswagen’s counsel congratulated

the Trulls’ counsel. Judgment was entered for the Trulls on April

25, 2001.

On May 7, 2001, Volkswagen filed its post-trial motions

for judgment as a matter of law or, in the alternative, for anew

trial and for remittitur. In these motions it argued for the first time

that the verdict was inconsistent. On June 6, 2001, the district

court entered an order denying defendant’s motions, concluding

that defendant’s claims of inconsistent verdict “are not only

without merit but also they have not been raised in a timely

fashion.” (VW App., 19a-29a). The district court further found

that Volkswagen “appears to be trying to manufacture confusion

ex post facto where in fact none existed”.

Volkswagen appealed to the First Circuit Court of Appeals.

During oral argument, under careful questioning by Judge Lipez,

Volkswagen admitted that it was not relying on the “plain error”

exception to Rule 51, Fed. R. Civ. P. On November 14, 2002,

the First Circuit affirmed the judgment below in all respects,

Trull v. Volkswagen of America, Inc., 320 F.3d 1 (1st Cir.

2002) (VW App., 1a-18a). The court concluded that:

1. Volkswagen had forfeited its objection to any

verdict inconsistency by failing to object at any time

prior to the jury’s discharge;

2. Volkswagen had waived any objection to verdict

inconsistency by failing to object to the instructions

to the jury pursuant to Rule 51, Fed. R. Civ. P.;

4

3. It was not plain error under New Hampshire law

to enter judgment for the Trulls on negligence, but

not on strict liability;

4. There wasa “plethora of evidence” supporting the

jury’s finding that Volkswagen was negligent.

Volkswagen filed a petition for rehearing which was denied

on February 11, 2003. On February 27, 2003, the First Circuit

denied Volkswagen’s motion to stay the mandate and mandate

was issued immediately. On March 7, 2003, Volkswagen applied

to this Court for a stay of the mandate. Justice Souter denied the

application on March 11, 2003. Shortly thereafter, Volkswagen

paid the judgment. -

REASONS FOR DENYING THE PETITION

I. Introduction

The way in which Volkswagen describes the proceedings

below is completely inaccurate. Volkswagen also misstates the

issues which would be before the Court if the writ were granted.

Volkswagen acquiesced through all phases of the trial with

the concept that the Trulls could recover in negligence even if the

jury found no strict liability. Volkswagen even requested a jury

instruction to that effect. The following chronology details

Volkswagen’s consent to the proposition that the Trulls could

recover in negligence even if the jury found no strict liability.

1. Volkswagen requested an instruction which explained:

that the case was brought under the theories of strict

liability and negligence and that, “You may return a

verdict for plaintiffs on either one or both of these

theories”. (App., infra, 1a-2a).

5

Volkswagen failed to object to a “Yes” on

negligence/’”No” on strict liability verdict, either at

the charging conference or after the final draft of

instructions was prepared. (VW App., 27a).

Volkswagen explained in its closing argument to

the jury that if they answered no to the question of

defect, they did not get to the issue of causation

with respect to strict liability. Volkswagen then went

on to discuss the questions relating to negligence.

(App., infra, 3a).

Volkswagen failed to object to the Trulls’ closing

argument, in which plaintiffs explained the two

alternative theories of recovery to the jury and

advised the jury that the Trulls could recover under

either theory. (App., infra, 4a-6a).

Volkswagen failed to object to the court’s

instruction that, “The plaintiffs have asserted strict

product liability and negligence claims against the

defendant. However, they need not prove both

claims to recover. They will be entitled to recover

if they prove one or the other of these claims.”

(VW App., 37a-38a).

Volkswagen failed to object to the court’s instruction

that, “A plaintiff need not prove both claims in

order to recover. It is sufficient if a plaintiff proves

one or the other of the claims”. (VW App., 44a).

Volkswagen failed to object to the court’s

instruction that, “If the plaintiff fails to meet his

burden on both claims, you will conclude your

10.

6

deliberations. If the plaintiff meets his burden on one

or both of his claims then you will take up the next

issue... .” (VWApp., 45a).

Volkswagen failed to object to the directions after

Question 1 on the Special Verdict Forms, which

advised the jury to go to the question of negligence if

they answered “No” to strict liability, and the court’s

corresponding explanation that, “If you answer no to

question number one. . . you’ve made a determination

that under the theory of strict liability, the plaintiff did

not meet his burden of proof. . . If you come to that

conclusion . . . you would go over and take up the

negligence claim.” (VW App., 34a; App., infra, 8a).

Volkswagen failed to object to the directions after

Question 4 on the Special Verdict Forms, which

advised the jury to proceed to crashworthiness

damages issues, if they answered “Yes” to either strict

liability and/or negligence, and to the court’s

corresponding instruction that, “there are two claims

here, strict tiability and negligence. All the plaintiff

needs to do in order to recover damages is to prevail

on one of those claims. The plaintiff need not prove

both of those claims. If the plaintiff proves one of those

claims, the plaintiff would be entitled to damages.”

(VW App., 35a; App., infra, 9a).

Volkswagen failed to object to the court’s instruction

that “all the plaintiff needs to do is to prevail on one of

the claims in order to pass on the damage issue.”

(App., infra, 9a).

7

In the face of this record, Volkswagen seeks to avoid the

inexorable conclusion that it invited the error which it now alleges

by discussing purported differences in the way the circuit courts

have handled issues relating to Rule 49. But if certiorari were

granted in this case, this Court would never reach those issues.

This case would be resolved on the same issue as that upon

which it was resolved in the lower courts — waiver. That is

regardless whether the verdict is characterized as one submitted

or returned under Rule 49(a) or Rule 49(b), no court would

overlook Volkswagen’s continued acquiescence with the concept

that the plaintiffs could win in negligence while losing in strict

liability. While Volkswagen claims that most courts would reach

the merits of its argument, nothing could be further from the truth.

In fact, no other court would reach the merits of defendant’s

argument and Volkswagen cites no case to alter this conclusion.

From the moment Volkswagen filed its post-trial motions, it

has adopted a strategy of diversion and obfuscation. Disregarding

the fact that Volkswagen’s counsel congratulated plaintiffs’ counsel

after the verdict, Volkswagen argued in the district court that the

verdict slip should be construed to mean that Volkswagen won

the case. Desperately trying to convince the district court that

the jury somehow failed to follow the court’s instructions,

Volkswagen claimed the jury must have been confused.

The district judge, however, recognized the transparency of

Volkswagen’s tactics by stating that, “the defendant appears to

be trying to manufacture confusion ex post facto where in fact

none existed.” (VW App., 24a).

Volkswagen’s bankrupt strategy continued in the First

Circuit. Rejecting the contention that the district court somehow

did not afford Volkswagen an adequate opportunity to object to

the verdict, the First Circuit found “nothing in the record to

substantiate this implication” (VW App., 3a). Although

8

Volkswagen claimed that it had been thwarted in its attempt to

lodge objections to the verdict, the First Circuit rejected

Volkswagen’s claim, stating, “there is nothing in the record to

indicate that VW wished to object to anything” (VW App., 4a).

Judge Campbell, concurring, simply concluded that “[i]f VW

wanted to argue the inconsistency issue, it needed to preserve

its rights”. (VW App., 18a).

The attempts to misstate and divert attention continue in this

Court. Volkswagen states on numerous occasions in its Petition

that it should not be faulted for failing to object to submission of

both negligence and strict liability theories because submission

of both theories is specifically warranted under state law.

But whether both theories were appropriately submitted is not

and has never been the issue on which the case has turned.

The issue has always been and continues to be whether

Volkswagen waived its inconsistency argument on the merits by

continually failing to argue that a verdict for defendants on strict

liability would preclude a verdict for plaintiffs on negligence.

As to this, the true issue, Volkswagen continually advocated for

and adopted the position directly contrary to that which it now

asserts. Under the doctrine of invited error, a principle universally

followed in all of the circuits, Volkswagen may not be heard on

the merits of its argument.

9

II. The Case Was Correctly Decided Below

A. Volkswagen’s Failure To Comply With Fed. R. Civ.

P. 51 Precludes Consideration Of The Issues It

Raises Pursuant To Fed. R. Civ. P. 49

An examination of the record below indicates that

Volkswagen did not preserve any objection which would now

allow it to argue before this Court that the verdict is inconsistent.

Volkswagen had every opportunity to assert the position that a

finding of no strict liability would result in judgment in its favor.

Instead, it agreed with and adopted the position that the Trulls

could recover on their negligence claim even if the jury found for

Volkswagen on the strict liability claim. Thus, in accordance with

the special verdict-form, the trial court instructed the jury:

Now, as you can see from the questions and from

the instructions under question number one there, if

you answer’ question number one, you go on to

question number two. Jf you answer no to question

number one, then you dont go on to question

number two because you’ ve made a determination

that under the theory of strict liability, the plaintiff did

not meet his burden of proof. Jf you come to that

conclusion, then you would not go on to question

two. You would go over and take up the negligence

claim.

- (App., infra, 8a) (emphasis added). Volkswagen specifically

agreed to and failed to object to this instruction.

1. It appears that the court reporter omitted the words “yes

to” from the transcript at this location.

10

Volkswagen tiptoes through its problem of not having objected

to the verdict form and corresponding instructions by admitting that

it “might have been preferable” if the form instructed the jury to end

its deliberations after a ““No” finding on question 1 (VW’s Petition

at 28).? Yes, it “might have been preferable” for Volkswagen to

have made the necessary objection to preserve its argument for

appeal rather than to waive it. No, Rule 51 cannot be read to excuse

Volkswagen’s failure to object.

As Judge DiClerico pointed out in his opinion denying

Volkswagen’s post-trial motions, Volkswagen had numerous

opportunities to object to the concept that plaintiffs could

win in negligence while losing in strict hiability, but failed to do so.

The court summarized the proceedings as follows:

This case has been through two trials. If the issue of

inconsistent verdicts is as significant as the defendant

contends, then it is one the defendants should have

“ anticipated and should have raised with the court earlier

in the proceedings when there were numerous

opportunities to do so. However, it was not raised during

the charging conferences for either trial, by way of

objection immediately after the jury charge was given in

either trial, or by way of objection immediately following

the jury’s verdict in the second trial. It was in the second

trial that the issue was raised for the first time in a motion

filed a number of days after the verdicts were retumed

and the jury had been discharged. ;

(VW App., 21a).

2. See Wilson v. Bradlees of New England, Inc., 250 F.3d 10

(1st Cir. 2001), where the same district court judge gave such an

instruction, which the court found appropriate under the

circumstances of that case, where it was requested by the defendant.

11

The First Circuit affirmed the decision of the district court in

all respects. Concerning Volkswagen’s Rule 51 waiver, the First

Circuit stated:

The instructions made it clear that the jury was

to be asked to decide the issue of liability on both

the theory of strict liability and the theory of

negligence. The verdict forms had been examined by

counsel for VW before they were submitted. VW’s

reason for its failure to object at the critical times

was that the verdicts did not become inconsistent until

after the jury had completed them. But we cannot

accept this; to do so would countenance agreeable

acquiescence to perceivable error as a weapon of

appellate advocacy. By failing to timely object to the

jury instructions, VW thereby waived any objection

it may have had. See Fed. R.Civ. P. 51

(VW App., 6a) (citations and internal quotations omitted).

Groping for an argument that there is something controversial

about its garden-vaniety waiver, Volkswagen claims there is a

conflict among the circuits concerning the manner in which Rule

51 should be interpreted. The best Volkswagen can do to

manufacture this conflict is to cite Loughman v. Consol-

Pennsylvania Coal Co., 6 F.3d 88 (3d Cir. 1993) and Holloway

v. McIntyre, 1988 WL 7961 (6th Cir.). These cases most

certainly do not support the contention that a party need not

comply with Rule 51 to preserve an issue for appeal. Moreover,

to the extent these cases might be read to excuse non-compliance

with Rule 51, they are aberrations rather than evidence of a

conflict.

12

Loughman involved an incredibly complex proceeding in

which the jury was requested to answer at least 59

interrogatories.’ In analyzing the specific nature of that verdict

form, the Third Circuit indicated that it was focusing on whether

the jury’s answers could be reconciled rather than whether the

parties failed to object under Rule 51. The court ultimately

concluded that the verdict could be harmonized based on the

jury’s answers to the questions submitted. Loughman provides

no support that there is a conflict between the circuits concerning

Rule 51.

Nor does the Holloway case provide support for

Volkswagen’s argument. There, the jury failed to follow the court’s

instructions which indicated that the employer could only be liable

based on the acts of its employees. Under the verdict returned

by the jury, the employer was held liable and the employees

exonerated. Because the court concluded that the jury must have

been confused, the Sixth Circuit upheld the district court’s order

vacating the judgment against the employer. Here, in contrast, as

both the district court and the First Circuit recognized, the jury

simply adopted one of the choices agreed to by Volkswagen:

finding for the plaintiff on negligence and for the defendant on

strict liability. Again, Holloway certainly does not indicate there

is aconflict in the circuits concerning Rule 51.‘

There is no hint in the record of this case that Volkswagen

should be excused from failing to comply with Rule 51. This

3. The verdict form is not set out in the opinion, but the court

referred to the jury’s response to interrogatory 59.

4. As to Volkswagen’s claim that the “view” of the Third Circuit

is “reflected implicitly” in other decisions (VW’s Petition at 25),

there is no indication whatsoever than a waiver issue under Rule 51

was in any way involved in those decisions.

13

Court will ordinarily not decide questions not raised in the lower

courts, particularly where the party seeking to argue the issue

has failed to object to a jury instruction pursuant to Fed. R. Civ.

P. 51. City of Springfield, Massachusetts v. Kibbe, 480

U.S. 257, reh. denied, 481 U.S. 10311 (1987). Because

Volkswagen’s failure to comply with Rule 51 dooms any chance

of success on the merits and renders moot any Rule 49-related

issues, Volkswagen is unable to establish that there is any conflict

between the circuits, the resolution of which would allow it to

prevail on the merits. The writ should be denied.

B. No Construction Of Rule 49 Would Serve To

Preserve Volkswagen’s Contention That The

Verdict Is Inconsistent ee

As is made clear by the foregoing discussion, Volkswagen

did not contend that the verdict was inconsistent until days after

the jury was discharged. There was good reason for this; the

verdict was in fact consistent with the way the case was tried.

That is, the parties agreed throughout the trial that the Trulls could

recover in either negligence or strict liability. When the jury found

for the Trulls on one of these theories, it was simply accepting

one of the options it had been given under the instructions and

the verdict form.

A reversal of the judgment in this case would sanction the

unthinkable. It would allow a litigant to consistently advocate for

and agree with a proposition of law or procedure throughout the

trial (i.e., that the Trulls could win in negligence while losing on

strict liability) and then allow the litigant to renounce that position,

assume the opposing position and seek a new trial after the jury

is discharged. Needless to say, allowing litigants to do that would

engender chaos in the justice system. Cases would be routinely

tried on multiple occasions, until the losing litigant achieved a

14

result to his satisfaction. In the words of the First Circuit,

“to countenance a setting aside of the verdicts in this case would

place a premium on agreeable acquiescence to perceivable error

as a weapon of appellate advocacy.” Merchant v. Ruhle, 740

F.2d 86, 92 (1st Cir. 1984).

Every single Circuit Court of Appeals recognizes the doctrine

of invited error. That is, where a party itself proposes a jury

instruction accepted by the court and later attacks that instruction

on appeal, review will be denied under the doctrine of invited

error. United-States v. Taylor, 2003 WL 1459140 (9th Cir.);

Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283 (11th

Cir. 2002), cert. denied, 123 S. Ct. 868 (2003); United States

v. Celestine, 2002 WL 1821971 (4th Cir.), cert. denied, 123

S. Ct. 706 (2002); Parker v. Champion, 148 F.3d 1219 (10th

Cir. 1998); United States v. Baybank (Houston), Inc., ‘34

F.2d 599 (Sth Cir. 1991); Harris v. Roadway Express, Inc.,

923 F.2d 59 (6th Cir. 1991);-United States v. Muskovsky, 863

F.2d 1319 (7th Cir. 1988), cert. denied, 489 U.S. 1067 (1989);

United States v. Young, 745 F.2d 733 (2d Cir. 1984), cert.

denied, 470 U.S. 1084 (1985); Weiner v. Roll Form, Inc.,

744 F.2d 797 (Fed. Cir. 1984), cert. denied, 470 U.S. 1084

(1985); United States v. Kakley, 741 F.2d 1 (1st Cir.), cert.

denied, 469 U.S.:887 (1984); Mid-America Food Service,

Inc. v. ARA Services, Inc., 578 F.2d 691 (8th Cir. 1978);-

United States v. Wiggins, 530 F.2d 1018 (D.C. Cir. 1976);

Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767 (3d

Cir. 1975).

In the case at bar, it is obvious why Volkswagen did not

object prior to jury discharge. Put simply, the verdict of the jury

was consistent, not inconsistent, with the instructions that had

been given. While some of ‘he points in Volkswagen’s petition

as to conflicts in Rule 49 decisions might be germane to some

15

other case, they have no relation to this one, where the verdict

delivered by the jury was completely consistent with the legal

principles stated in the charge.* The jury was properly instructed on

what the Supreme Court of New Hampshire has referred to as the

“‘semantical and theoretical differences” between the “apples” of

negligence and the “oranges” of strict liability. Thibault v. Sears

Roebuck & Co., 118 N.H. 802, 395 A.2d 843, 849 (1978).

In accordance with this principle, the jury was given three choices:

to find for the Trulls on both theories, to find for Volkswagen on

both theories, or to find for each of the parties on one of the theories.

The jury had three choices and accepted one of them. Any conflicts

which exist between the circuits as to the various aspects of Rule 49

cannot negate the simple fact that the jury verdict here was not

inconsistent with the law and choices agreed to by the parties.

Thus, Volkswagen’s lengthy discourseas to the fine distinctions

between Rule 49(a) and Rue 49(b) is of no moment here. Needless

to say, Volkswagen cites no case under either Rule 49(a) or 49(b)

where a litigant prevailed on appeal after requesting a jury instruction

adopted by the court and then claiming that an inconsistent verdict

resulted from the court’s acceptance of the instruction. The couiis

have rejected this type of argument through the use of various terms

— waiver, judicial estoppel, invited error, law of the case — but

~ have never sanctioned it. To do so would result in a mockery of the

justice system.

5. Volkswagen complains that the verdict cannot stand because

the jury did not find a “defect”. That term, however, in context, is

often used as a shorthand way of referring to the requirement of

“unreasonably dangerous defective condition” and/or negligent conduct.

For example, in the decision of the Supreme Court of New Hampshire

in this case, the court in one instance uses the term “design defect” and

in another instance uses the term “defendant’s conduct” in referencing

the showing plaintiff must make to shift the burden of proof on injury

causation to the defendant. 7rull v. Volkswagen of America, Inc., 145-

N.H. 259, 761 A.2d 477, 482, 483 (2000).

16

While it is certainly true that this Court has on occasion

granted certiorari to address conflicts in the Circuits as to

interpretation of procedural rules,° this Court should not grant

certiorari in a case where the merits of any such conflict would

6. If this Court had wished to address issues relating to

Rules 49(a) and (b), it had a much better opportunity to do so in

Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir.), cert. denied, 123

S. Ct. 539 (2002), in which Ford raised a virtually identical argument

to that which Volkswagen urges here. This case has remarkable

similarities to the Jarvis case in which this Court denied certiorari

on November 12, 2002. Both cases are automotive product liability

cases in which virtually identical verdict forms were utilized.

In each of the cases the jury found for the plaintiff on negligence

out for the defendant on strict liability. In each case, the plaintiff

claimed that the defendant had failed to preserve its objection to the

allegedly inconsistent verdict. In Jarvis the Second Circuit agreed,

finding for the plaintiff in a two-to-one decision. Because of the

extreme similarity of the Jarvis case to the case at bar, Volkswagen

here had no choice but to argue that Jarvis was an “erroneous

decision” in seeking rehearing in the First Circuit. This Court denied

Ford’s Petition for Writ of Certiorari in Jarvis despite the fact that

Jarvis presented a much stronger record for the manufacturer than

that in this case. Specifically, the Jarvis record involved the

following:

¢ Ford argued before the case was submitted to the jury that

the case should not be submitted on both strict liability and

negligence. Volkswagen made no such contention here.

¢ Ford objected to the alleged inconsistency of the verdict

before the jury was discharged. Volkswagen made no such

objection here.

¢ The trial court specifically instructed the jury that “if...

you find the product was not defective ... you will find

that Ford was not negligent”. The jury was not so instructed

here.

17

never be reached. The case at bar involves a pedestrian attempt

by a litigant to play fast and loose with the federal court system

by attempting to change its position after failing to protect the

record and losing at trial. No Circuit Court of Appeals would

come to the aid of such a litigant; this Honorable Court should

certainly not do so.

CONCLUSION

The petition for Writ of Certiorari should be denied.

Respectfully submitted,

EDWARD M. Swartz

Davip P. ANGUEIRA*

ALAN L. CANTOR -

Swartz & SwARTz

10 Marshall Street

Boston, MA 02108

(617) 742-1900

Counsel for Respondents

* Counsel of Record

APPENDIX

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APPENDIX A— EXCERPTS OF DEFENDANTS’

REQUEST FOR JURY INSTRUCTIONS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Civil Action No. 94-15-JD

ELIZABETH TRULL, NATHANIEL TRULL

PPA DAVID TRULL, DAVID TRULL INDIVIDUALLY

AND DAVID TRULL, ADMINISTRATOR OF THE

ESTATE OF BENJAMIN TRULL,

Plaintiffs

v.

VOLKSWAGEN OF AMERICA, INC.

and VOLKSWAGEN, A.G,

Defendants

DEFENDANTS’ REQUEST FOR JURY

INSTRUCTIONS

Proposed Instruction No. |

You are instructéd to return a verdict in favor of the

defendants, Volkswagen of America, Inc. and Volkswagen,

A.G

2a

Appendix A

Proposed Instruction No. 8

Alternative Theories.

Plaintiffs have brought this case under two theories of

liability: (a) strict liability in tort; and (b) negligence; You may

return a verdict for plaintiffs on either one or both of these

theories.

Plaintiffs’ strict liability theory arises from the allegation

that the defendants manufactured and sold a vehicle that

contained defects which rendered the vehicle defective and

unreasonably dangerous as well as a claim that defendants

failed to warn Mr. and Mrs. Trull and their family about these

claimed defects.

Plaintiffs have also alleged that defendants are liable

under a theory of negligence. Negligence is the failure to

use reasonable care. Reasonable care is that degree of care

which a (reasonably careful) person or corporation would

use under the same or similar circumstances. This is the -

standard of care that all persons are expected tc live up to.

Negligence may consist of either doing something that a

(reasonably careful) person would not do under the same or

similar circumstances or failing to do something that a

(reasonably careful) person would do under the same or

similar circumstances. Failure to exercise due care amounts

to legal fault if you find it caused or contributed to cause the

injury or damage suffered by the plaintiffs.

N.H. Civil Jury Instructions, No. 6.1

*x* * * *

3a

APPENDIX B — EXCERPTS OF VOLKSWAGEN’S

CLOSING ARGUMENT

[Commencing R. 2407]

* * *

Now, you are going to be given a verdict form by

the Court and that verdict form is going to have a number

of questions on it. One of those questions is going to be

was the Volkswagen 1986 [2408] Vanagon defective and

unreasonably dangerous. The Court will give you more

instruction on that, but if you answer no to that question,

then you don’t go any further. You don’t get to issues of

causation with respect to the strict liability.

There’s going to be another question involving

negligence. Was the design and manufacture and sale of the

Volkswagen — was Volkswagen negligent in doing that.

If you answer no to that question, you go no further.

I submit to you, ladies and gentlemen, that when you go

to the jury room and evaluate the evidence, you can reach

only one conclusion, a no answer to both of those questions.

Thank you very much.

* * * *

da

APPENDIX C — EXCERPTS OF TRULLS’ CLOSING

ARGUMENT

[Commencing R. 2440]

Ladies and gentlemen, what we have in this case are two

claims. One is strict liability and one is negligence, and we

| haven’t talked much about this, so let me just explain this to

| you, and the judge will explain it in detail.

There are two theories under the law. One says, strict

liability, that if a manufacturer makes a product that’s

defective or unreasonably dangerous without looking at the

manufacturer’s conduct, and if that defect or unreasonably

dangerous product causes an injury, that’s it. I’ve proven

my case.

The other one, negligence, looks at the [2441] conduct,

the attitude, the testing, the designing of the product, the

conduct of the defendant which is called negligence; and

| those are the two theories.

Now, here’s what I want you to remember. Under strict

liability — and listen to Judge. DiClerico and see if he says

this — if the manufacturer did not take reasonable steps to

lessen or eliminate the danger, you can find them liable for

strict liability.

Well, ask yourself how could Volkswagen have lessened

or eliminated the danger of these defective unreasonably

unsafe lap/shoulder belts? Very simple. You put in lap/

~ Shoulder belts. That’s all they had to, do.

_—

ee

5a

Appendix C

Under the theory of negligence a manufacturer’s required

to design and sell a vehicle without any reasonable dangers.

The failure to do what a reasonable and prudent manufacturer

should do is enough for you to find that they are liable. Well,

what do you think a reasonably prudent manufacturer should

have done? I’m showing you right here. Here’s our American

companies. They do it. They tell the people. They at least

advise the people of the availability of those lap/shoulder

belts, not Volkswagen. They don’t put them in and they don’t

[2442] even tell you about them. And if the unreasonable

danger can be eliminated or reduced without excessive cost,

that you can use to find them negligent with.

Well, what was the added cost to Volkswagen to put

in these lap/shoulder belts if they are already doing it on

the same production line for Germany? Zero, doesn’t cost

them anything. According to Mr. Meissner, they charge

the customer.

There’s another issue you are going to be looking at. It’s

called proximate causation, and I apologize for throwing all

_ of this at you, but you are going to have to deal with it, so I

want you to be somewhat familiar with it. A fancy word,

proximate causation. What it means is that if you find that

Volkswagen was strictly liable or negligent, you have to say

to yourself was their conduct, was that strict liability or

negligence, a legal cause of the injuries to these boys?

6a

Appendix C

Now, keep in mind I don’t have to prove to you that

their negligence or strict liability was the only cause or the

sole cause. I don’t have to prove that to you. Listen to the

judge. I only have to prove to you that that strict liability or

negligence was a proximate cause, was a substantial

contributing factor to the injury.

* * * *

7a

APPENDIX D — EXCERPTS OF

JURY INSTRUCTIONS

[Commencing R. 2489]

* *x *

Now, attached to your instructions are copies of the

special verdict forms. There is one form for Nathaniel —

for the plaintiff, Nathaniel Trull, and one form for the

plaintiff, Benjamin Trull, and we have put the names in bold

type so that you do not confuse the two since the formal title

of the cases is very similar.

As I said, 1 special verdict form for each of the plaintiffs

because you are to consider each claim separately. The

foreperson will have an original special verdict form and will

be responsible for filling out that form. This form follows

the order in which I gave you the instructions. So in a way it

provides an order for your deliberations.

~ As I said there are two claims here. One is under the

theory of strict liability and one is under the legal theory

negligence. You will first take up the strict liability claim

and you will address the [2490] first question, which says,

do you find by a preponderance of the evidence that the 1986

Vanagon was defectively designed because it lacked lap/

shoulder belts in the rear seating positions? You will answer

that question yes or no. If you answer that question yes, then

you have a second question to answer under the strict liability

claim, and that is the causation question. Do you find from a

preponderance of the evidence that the defective condition

caused or substantially caused injuries to Nathaniel Trull over

8a

” Appendix D

and above those which were probably caused as a result

of the original collision? You will answer that question yes

or no.

Now, as you can see from the questions and from the

instructions under question number one there, if you answer

question number one, you go on to question number two.

If you answer no to question number one, then you don’t

go on to question number two because you’ve made a

determination that under the theory of strict liability,

the plaintiff did not meet his burden of proof. If you come to

that conclusion, then you would not go on to question two.

You would go over and take up the negligence claim.

The negligence claim, question three, asks you the

following question. Do you find by a [2491] preponderance

of the evidence that the defendant was negligent in designing

and/or testing the 1986 Vanagon because it lacked lap/

shoulder belts in the rear seating positions? You will answer

that question yes or no. Again, if you answer that question

yes, then you will go on to question four, which is the

causation question. Did the defendant’s negligence cause or

contribute to cause the injuries to Nathaniel Trull over and

above those which were probably caused as a result of the

original collision? However, if you answer question three

no, that means that you have found that the defendant

was not negligent or that the plaintiff did not meet his

burden in that case; so there’s no need to go on and answer

question four.

9a

Appendix D

At that point, depending on what you have done, you

address the instructions at the bottom of the page that say

further instructions.

Now, as I said, there are two claims here, strict liability

and negligence. All the plaintiff needs to do in order to

recover damages is to prevail on one of those claims.

The plaintiff need not prove both of those claims. If the

plaintiff proves one of those claims, the plaintiff would

be entitled to damages. Obviously if the plaintiff proved

both of those claims, the plaintiff would be entitled to

[2492] damages. If the plaintiff doesn’t prove either one of

those claims, the plaintiff is not entitled to damages.

So that is what these further instructions reflect. If you

have answered yes to questions one and two, that would be

yes on Strict liability, and yes to questions three and four,

then you would go on to answer more questions. Let me do

the “or” part of it now, if you have answered yes to question

one and two or question three and four.

Once again, that’s another way of saying that all the

plaintiff needs to do is to prevail on one of the claims in

order to pass on the damage issue.

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