Amicus Curiae Brief — Volkswagen of America, Inc. v. Trull

MOTION FILED | (3)

JUN 1 6 285 No. 02-1677

In The

Supreme Court of the United States

¢

VOLKSWAGEN OF AMERICA, INC., et al.,

Petitioners,

v.

NATHANIEL TRULL, e¢ al.,

Respondents.

, .

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

S 7

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE AND BRIEF OF THE

PRODUCT LIABILITY ADVISORY COUNCIL, INC.

IN SUPPORT OF THE PETITIONERS

¢

HUGH F. YOUNG LESLIE G. LANDAU

Of Counsel Counsel of Record

PRODUCT LIABILITY ADVISORY RIANNE E. NOLAN

COUNCIL, INC. BINGHAM McCCUTCHEN LLP

1850 Centennial Park Dr., Three Embarcadero Center

Ste. 510 San Francisco, CA 94111

Reston, VA 20191 (415) 393-2000

(703) 264-5300 :

Attorneys for Amicus Curiae

Product Liability Advisory Council, Inc.

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

OR CALL COLLECT (402) 342-2831

”

io

. 1

MOTION OF THE PRODUCT LIABILITY

ADVISORY COUNCIL, INC. FOR LEAVE

TO FILE BRIEF AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

Pursuant to Rule 37 of the Rules of this Court, the

Product Liability Advisory Council, Inc. (“PLAC”) respect-

fully requests leave to file the accompanying brief as

amicus curiae in support of the petition for writ of certio-

rari in the above-referenced case.*

PLAC is a non-profit association with 135 corporate

members representing a broad cross-section of American

and international product manufacturers. These compa-

nies seek to contribute to the improvement and reform of

law in the United States and elsewhere, with emphasis on

the law governing the liability of manufacturers of prod-

ucts. PLAC’s perspective is derived from the experiences of

a corporate membership that spans a diverse group of

industries in various facets of the manufacturing sector. In

addition, several hundred of the leading product liability

defense attorneys in the country are sustaining (non-

voting) members of PLAC. Since 1983, PLAC has filed 43

briefs as amicus curiae in this Court (and over 600 briefs

in state and federal courts combined), presenting the

broad perspective of product manufacturers seeking

fairness and balance in the application and development of

the law as it affects product liability. A list of PLAC’s

corporate members is attached as Exhibit A.

* Petitioner consented to the filing of the attached brief, but

Respondent did not.

2

Of all parties, product manufacturers are perhaps

most adversely affected by the unpredictable application of

waiver rules to objections to inconsistent verdicts. Federal

courts regularly adjudicate product liability cases under

state law that recognizes both strict liability and negli-

gence, and permits plaintiffs to pursue both claims in a

single action. Those claims invite inconsistency when both

claims are founded on a defective design: a jury that finds

no design defect on a strict liability claim cannot rationally

hold the manufacturer liable for negligently designing or

manufacturing that non-defective product, yet it happens

with some frequency. Thus, in the product liability setting,

parties need to know what objections they need to make,

and when, to preserve the constitutional right to a rational

verdict. PLAC members are accordingly vitally interested

in ensuring that the preservation rules are consistently

and fairly applied, so manufacturers have notice of how to

assure judgment based on a rational verdict, and review if

judgment is entered on an irrational verdict.

Conflict among the circuits’ interpretation of Rule 49

and Rule 51, however, makes protection against inconsis-

tent verdicts a lottery. There are conflicts among and

within the circuits about (1) whether Rule 51 requires

parties to object to submission of potentially inconsistent

claims before the jury is charged; (2) whether Rule 49

requires parties to object before discharge of the jury to

inconsistent general verdicts, inconsistent special verdicts,

or both; and (3) where courts hold the duty to make a pre-

discharge objection turns on whether the jury returned

general or special verdicts, how to determine which verdict

is which. Parties, and manufacturers in particular, there-

fore cannot know what objections are required when, and

have no reliable way to assure they do not suffer from the

| 3

, most fundamental of errors — judgment based on inconsis-

tent verdicts.

As a representative of parties frequently faced with

inconsistent verdicts, PLAC is well suited to share with

the Court the broader perspective of the product manufac-

turing community on the extent of the circuit conflict, as

well as its severe and recurring consequences. For these

reasons, PLAC respectfully requests that its motion for

leave to file the accompanying brief as amicus curiae be

granted.

; Respectfully submitted,

HUuGH F.. YOUNG LESLIE G. LANDAU

Of Counsel Counsel of Record

) PRODUCT LIABILITY ADVISORY RIANNE E. NOLAN

) CoUNCIL, INC. BINGHAM MCCUTCHEN LLP

: 1850 Centennial Park Dr., Three Embarcadero Center

Ste. 510 San Francisco, CA 94111

Reston, VA 20191 (415) 393-2000

(703) 264-5300

QUESTIONS PRESENTED

1. Whether, under Federal Rule of Civil Procedure

49, a party waives its objection to the entry of judgment in

a manner inconsistent with the jury's finding on a mixed

question of law and fact by failing to note the inconsis-

tency before the jury is discharged. _

2. Whether, under Federal Rule of Civil Procedure

51, a defendant’s failure to object to the submission of a

case to the jury on multiple liability theories waives a

subsequent argument that the jury’ findings on those

theories are inconsistent.

+

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .....ccccsssssssseseeseeees 1

SUMMARY OF ARGUMENT. .........cccscccssssesssssesseeeees 2

BID iiss ccncechpshcnean acena es 4

I. THE LAW IS CONFUSED ON HOW TO

PRESERVE OBJECTIONS TO INCONSIS-

THIET Vile iisieikiniscctinlimncdimiendonls 5

A. The Conflict On Whether Pre-Discharge

Objections Are Required.................sscsseee 5

B. The Conflict Over The Need To Object To

Submission Of Potentially Conflicting

IE, isis incxnacsisicauiietanke Uetasantapleaiitens 8

Il. THE CONFLICTS ARE IMPORTANT TO

RESOLVE: RECURRING PROBLEMS, DIS-

PARATE RESULTS, AND UNSUPPORTED

FE ME A ikinivnssccininiciinieneebieieyeanaeea 9

A. Inconsistent Verdicts Are A Recurring

hss scchcinicsidieicnincniaccamababebaaligkdoeieaits 10

B. Disparate Results And Unfair Verdicts... 12

CE IG i ssitiscscininvsviciserechechucebuniiatiebumndasaameiaste 14

ili

TABLE OF AUTHORITIES

Page

CASES

Aerotech Res., Inc. v. Dodson Aviation, Inc., 191

, Chetanths Be TO Cs Te asi vseckvciccacisnciincerncevivnsssenis 10

Austin v. Paramount Parks, Inc., 195 F.3d 715 (4th

i TED scucaatbittcnin salsa dalbindniiceticanibe dada sadicinaliianntanaicaiapanie 6

Auwood v. Harry Brandt Booking oe Inc., 850

Fe Ne SING Be asic catnidenteincvideninaniniabieenticeenenen 13

Babcock v. General Motors Corp., 299 F.3d 60 (1st

RANE SPIEL ss vstsisntsh dia untied egeinine shade ceesaiketelibamaaciabnetonichbaed 8, 10

Becker v. Montgomery, 532 U.S. 757 (2001) .........scseeeeees .9

- Bonilla v. Yamaha Motor Corp., 955 F.2d 150 (1st

RR: SI i schascesdusnseahisticasscetin certdnouica mtnachaheslbreadlauenbid eaasiliocnnaetesientl 6

Bonin v. Tour West Inc., 896 F.2d 1260 (10th Cir.

PE isitcsattesiniasnsccaibinbdabssusesmancaen iieistisietisieilaeeaibdabeiancaeiee 13

Brown v. Yamaha Motor Corp., 691 P.2d 577 (Wash.

Sc aI MN Dhks dun easier bed bagtebuiubipVacuabadineckanmamianincanedienieete 11

Collier v. Estelle, 488 F.2d 929 (5th Cir. 1974)................... 7

Cordrey v. Euckert, 917 F.2d 1460 (6th Cir. 1990) ............. 7

Eagle Eye Fishing Corp. v. U.S. Dept. of Commerce,

BF Ba I (AGG CAE, TPG) cervcnsevennscersncenesescesenereceveeseneons 12

El-Hakem v. BY, Inc., 2003 U.S. Dist. LEXIS 8143

EE, Gel BIEN 2K, SIDI seinetscaneinssnccsiietebanngnenineinneesions 10

Figg v. Schroeder, 312 F.3d 625 (4th Cir. 2002)................ 13

Frazier v. Boyle, 206 F.R.D. 480 (D. Wi. 2002).................. 10

Freytag v. Commissioner, 501 U.S. 868 (1991).............c00e 7

iv

TABLE OF AUTHORITIES — Continued

Page

Garrett v. Hamilton Controls, Inc., 850 F.2d 263

I a 11

Golud v. J.W. Gant & Assoc., 863 F.2d 1516 (11th

Ie epee iiaesiea sistas sSaliciianacadachunadibiseanaicneabenadantdiniattsesatbaniincineies 5

Hanna v. Plumer, 380 U.S. 460 (1965)..............cccccssssssseees 14

Harris v. Rivera, 454 U.S. 339 (1981).................ccsscseeeeseees 13

Honeycutt v. Mahoney, 698 F.2d 213 (4th Cir. 1983).......... 9

Howard v. Antilla, 294 F.3d 244 (1st Cir. 2002)................ 10

In re Grantham Bros., 922 F.2d 1438 (9th Cir. 1991)......... 9

Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir. 2002),

cert. denied, 123 S. Ct. 589 (2002) ...............ceseeeeees 6, 8, 10

Jazzland, Ltd. v. Bordenave, 1999 U.S. Dis’. LEXIS

TOUR GaSe. Eth. BE Ts Be casa cinciceetd Ro csncecteatnancnionnes 9

Jiminez v. Se@rs;Roebuck & Co., 482 P.2d 681 (Cal.

SPD is cschctstisinsnciianidtacdncsei baked tatbhntsscdiigtnibesnlatiaddiaabasiitionsinniens 11

Ladnier v. Murray, 769 F.2d 195 (4th Cir. 1985)................ 5

Lavoie v. Pac. Press & Shear Co., 975 F.2d 48 (2d

COE RI acta vectenicicecatseriaseitstibeialiel sictigeicscnh etteencedideastacteintbig amet 11

Los Angeles Nut House v. Holiday Hardware Corp.,

825 F.2d 1251 (9th Cir. 1987).................... Sibtiiabdabeaiiinanias 13

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

Se Ge Sy Pe coisa turgntadibieabibariclanenicstaiinimamtsamccas 6, 8

Mason v. Ford Motor Co., 307 F.3d 1271 (11th Cir.

DGD cccensivnsitniicinbtinccgliessienielalibiieccisiiiaipiiathiniett seeeeeD, 6, 8, 10

McCollum v. Stahl, 579 F.2d 869 (4th Cir. 1978)............... 6

Mercer v. Long Mfg. N.C. Inc., 671 F.2d 946 (5th

Che TD astncnrridonntanl isscaeaaeidlctaclen aaah 13

TABLE OF AUTHORITIES — Continued

Page

Oja v. Howmedica Inc., 111 F.8d 782 (10th Cir.

BET istaibtikaxscueinde cobain cvaetbes inekeinsiecblacasibiskcbcdulatacnien’ 8,11

Peterson v. Little-Giant Glencoe Portable Elevator

Div. of Dynamics Corp., 349 N.W.2d 280 (Minn.

Ct. App. 1984), aff’d in part, rev'd in — 366

N.W.2d 111 (Minn. 1985)........... ibs daddl cosihlatiwid hphadimansenide 11

Phav v. Trueblood, Inc., 915 F.2d 764 (1st Cir. 1990)........ 12

Resolution Trust Corp. v. Stone, 998 F.2d 1534 (10th

Cas UIE ecihcaiiihackcialasdiianidiesibibicauipelieiidscaltcaieasaahintseiidkininanismebniac 5

Seven Provinces Ins. Co. v. Commerce & Industry

Ins. Co., 65 F.R.D. 674 (W.D. Mi. 1975) ..........ccccsseseeees we

Simmons v. Philadelphia, 947 F.2d 1042 (3rd Cir.

a iishecisies sbi xivchacuncobebadanivrascdvastucdeootessveasincniictellesminssios 5,6

Skillin v. Kimball, 643 F.2d 19 (1st Cir. 1981)................... 6

Tipton v. Michelin Tire Co., 101 F.3d 1145 (6th Cir.

Pee cit nics din cpaucnscan Gouanitsasninettielcesias ta asesadcovisadavis 8,11

Trull v. Volkswagen of Am., Inc., 311 F.3d 58 (1st

Se Ca iekahesoehs iatauaceuskaroduiavathes:-dentamnosiacssoaivaeitisdebeces 6, 8

United States v. F & M Schaefer Brewing Co., 356

I, A idl discs ie etdsncciain Shaaenehsaluncadahnitewiouien 10

United States v. Walton, 255 F.3d 487 (7th Cir.

SO inccteaihcs etipilisanesiiiniiaieli etisalat bien scarpinace 12

Werner.v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980)........... 8

Williams v..KETV Television, 26 F.3d 1439 (8th Cir.

| ARES pe RNR RET Y RSR DeeA e ne Ne CS e a 5

Witt v. Norfe Inc., 725 F.2d 1277 (11th Cir. 1984).............. 11

vi

TABLE OF AUTHORITIES — Continued

Page

FEDERAL RULES

Federal Rule of Civil Procedure 49.................:ccccccssseeees 2,14

Federal Rule of Civil Procedure 49(a) .................ceee008 3, 5, 6

Federal Rule of Civil Procedure 49(b) ...2.............ccee008 3, 5, 6

Federal Rule of Civil Procedure 51....................008 2, 3, 8, 14

I I Be OCI sittorsstcrsntiinssitinreniccnnenasansiiediebiontionsens 1

OTHER AUTHORITIES

Cal. Jury Instructions, Civil, Book of Approved

Jury Instructions (BAJI) 16.11, Form of Special

Verdict: Negligence and Products Liability (9th

ee niihinhiniis iii heiiiesieeieeeabiibeiiiiaincaeiasandaadiiaiiliia 12

Florida Standard Jury Instructions in Civil Cases:

IX Model Jury Charges and Verdict Forms,

Special Verdict Form for Model Charge 8 (2001).......... 12

Minnesota Practice Series: Civil Jury Instruction

Guides, Special Verdict Form 75.94 (4th ed. 1999)....... 12

INTEREST OF AMICUS CURIAE

The Product Liability Advisory Council, Inc. (“PLAC”)

is a non-profit association with 135 corporate members

representing a broad cross-section of American and inter-

national product manufacturers. These companies seek to

contribute to the improvement and reform of law in the

United States and elsewhere, with emphasis on the law

governing the liability of manufacturers of products.

PLAC’s perspective is derived from the experiences of a

corporate membership that spans a diverse group of

industries in various facets of the manufacturing sector. In

addition, several hundred of the leading product liability

defense attorneys in the country are sustaining (non-

voting) members of PLAC. Since 1983, PLAC has filed 43

briefs as amicus curiae in this Court (and. over 600 briefs

in state and federal courts combined), presenting the

broad perspective of product manufacturers seeking

fairness and balance in the application and development of

the law as it affects product liability. A list of PLAC’s

corporate members is attached as Exhibit A.

Of all parties, product manufacturers are perhaps

most adversely affected by the unpredictable application of

waiver rules to objections to inconsistent verdicts. Federal

courts adjudicate many product liability cases under state

law that recognizes both strict liability and negligence,

and permits plaintiffs to pursue both claims in a single

action. Those claims invite inconsistency when both are

founded on a defective design: a jury that finds no design

* Pursuant to Supreme Court Rule 37.6, PLAC states that PLAC

alone paid for the preparation of this brief.

2

defect on a strict liability claim cannot rationally hold the

manufacturer liable for negligently designing or manufac-

turing that non-defective product, yet it happens with

some frequency. Thus, in the product liability setting,

parties need to know what objections they need to make,

and when, to preserve the constitutional right to a rational

verdict. There are conflicts among and within the circuits

about (1) whether parties must object to submission of

-potentially inconsistent claims before the jury is charged;

(2) whether parties must object to an inconsistent verdict

before discharge of the jury; and (3) where.duty to make a

pre-discharge objection turns on whether the jury re-

turned a general or. special verdict, how to determine

which verdict is which. The uncertainty on these issues

leaves manufacturers in the dark about how to preserve

their rights. PLAC’s members accordingly have a strong

interest in this Court’s consideration of Volkswagen of

America v. Trull, No. 02-1677, as it provides an opportu-

nity to resolve the circuit conflicts on what constitutes a

general or special verdict and what requirements a party

must satisfy to preserve objections to inconsistent verdicts

under Federal Rules of Civil Procedure 49 and 51.

4

Vv

SUMMARY OF ARGUMENT

This is a textbook case for review. Waiver is a thresh-

old issue for appellate review, which can be dispositive of

the case regardless of the underlying merits. The conflicts

in the waiver rules concerning inconsistent verdicts are

substantial and well-recognized:

e The courts of appeals disagree as to whether

a party waives objection unless the party ob-

jects to an inconsistent verdict before the jury

3

is discharged: some courts hold that pre-

discharge objection is required only for incon-

sistent general verdicts (under Rule 49(b))

but not special verdicts (under Rule 49(a)),

and other courts hold that pre-discharge ob-

jection is required regardless what kind of

verdict is at issue.

e ‘Where the rule turns on the distinction be-

tween general and special verdicts, the courts

of appeals further disagree as to how to tell

one from the other.

e The courts of appeals disagree about whether

Rule 51 requires a party to object to the sub-

mission of multiple theories to the jury at the

outset.

These conflicts present a minefield for parties trying to

preserve objections.

In product liability cases, the inconsistent verdict

scenario is played out again and again, in court after

court, in circuit after circuit. And the results are, truly,

random and the consequences severe. In some circuits a

party who made no objection at all before the jury was

discharged gets review of the merits, while in others a

party who objected (but by that circuit’s strict rules not

enough or at the wrong time) gets none. Thus, the conflict-

ing waiver rules are, in many cases, outcome determina-

tive. That should not happen, much less on an issue like

inconsistent verdicts, where failure to review the issue can

lead to entry of a wrong judgment, which in turn impugns

the integrity of the judicial process and fundamentally

undermines the right to a jury trial. This Court’s guidance

is badly needed.

»

4

ARGUMENT

The Trull case is not unique. It is hard for counsel to

foresee verdict inconsistency, or appreciate its appearance

in the moment the jury’s verdict is read. Even when its

risk is apparent, the governing law (often state law) may

not permit effective prevention. And varying rules even

within circuits make it impossible to know which objec-

tions are required for which kinds of inconsistency, and

when they must be made. The best protection against

these unpredictable waiver rules is to make what some

circuits deem frivolous and meritless objections — itself a

problem. -

Review is appropriate whenever conflicts among the

circuits prevent the uniform application of the federal

rules. Review is particularly appropriate here. Entry of

judgment on an inconsistent verdict risks subversion of

the jury’s intentions, liability w) ere there should be none

(or vice versa), and so threatens the integrity of the

judicial system and fundamental constitutional rights. If

ever the federal rules should be clear and consistent, it is

here. But they are not, and the varying waiver rules can

be outcome determinative, yielding an affirmance in one

case in one circuit and-reversal in an identical case in

another circuit. The Court should grant review to put an

end to recurring problems where the integrity of the

judicial process is at stake.

a _

I. THE LAW IS CONFUSED ON HOW TO PRE-

SERVE OBJECTIONS TO INCONSISTENT

VERDICTS.

There is tremendous confusion among, and even

within, the circuits regarding what counsel must do to

preserve objections to inconsistent verdicts.

A. The Conflict On Whether Pre-Discharge

~ Objections Are Required.

The cases conflict on whether objections are required

to inconsistent verdicts before the jury is discharged, and

under what circumstances. The conflict is so baffling that

one circuit has thrown up its hands, expressly acknowl-

edging the confusion but postponing the chore of “untan-

gling these [] precedents.” Mason v. Ford Motor Co., 307

F.3d 1271, 1274 n.4 (11th Cir. 2002). Bereft of guidance

from the Court, cases deal with the problem in drastically

different ways.

Some circuits seem to require pre-discharge objections

regardless of whether the verdict is a special verdict under

Rule 49(a) or a general verdict under Rule 49(b). See Golub

v. J.W. Gant & Assoc., 863 F.2d 1516, 1521 n.4 (11th Cir.

1989); Williams v. KETV Television, 26 F.3d 1439, 1443

(8th Cir. 1994); Seven Provinces Ins. Co. v. Commerce &

Industry Ins. Co., 65 F.R.D. 674, 690 (W.D. Mi. 1975).

Other circuits hold pre-discharge objections are

required for general verdicts under Rule 49(b), but not for

: special verdicts under Rule 49(a). See, e.g., Simmons uv.

Philadelphia, 947 F.2d 1042, 1057 (3rd Cir. 1991); Resolu-

tion Trust Corp. v. Stone, 998 F.2d 1534, 1545 (10th Cir.

1993); Ladnier v. Murray, 769 F.2d 195, 198 n.3 (4th Cir.

6

1985); Austin v. Paramount Parks, Inc., 195 F.3d 715, 726

(4th Cir. 1999). “

Even within some circuits the law is confused. Take

the First Circuit. Bonilla v. Yamaha Motor Corp., 955 F.2d

150, 152 n.2, 155-56 (1st Cir. 1992), holds pre-discharge

objections are required in cases involving special verdicts

under Rule 49(a). In this case, however, the First Circuit’s

finding of waiver was tied to its finding that the jury

returned general verdicts, implying the waiver rule only

applies to general verdicts under Rule 49(b). See Trull v.

Volkswagen of Am., Inc., 311 F.3d 58, 62 (1st Cir. 2002).

Skillin v. Kimball, 643 F.2d 19, 20 (1st Cir. 1981), required

pre-discharge objections without distinguishing between

Rule 49(a) and Rule 49(b).

Among the courts that hold the rule turns on the Rule |

49(a)//Rule 49(b) special/general verdict distinction, the

agreement ends there. The courts disagree on what consti-

tutes a special verdict under Rule 49(a) and a general

verdict under Rule 49(b). For example, verdicts compara-

ble to the verdict in this case have been characterized as

both general and special, depending on the circuit. See

Simmons, 947 F.2d at 1057-58 (special verdict); McCollum

v. Stahl, 579 F.2d 869, 871 (4th Cir. 1978) (same); but see

Trull v. Volkswagen of Am., Inc., 311 F.3d 58, 62 (1st Cir.

2002) (general verdict); Jarvis v. Ford Motor Co., 283 F.3d

33, 55-56 (2d Cir. 2002) (same), cert. denied, 123 S. Ct. 539

(2002). Once again, the courts acknowledge the conflict,

but have not resolved it (if they have addressed it at all).

See Mason, 307 F.3d at 1274-75; Loughman v. Consol-

Pennsylvania Coal Co., 6 F.3d 88, 104 n.16 (3d Cir. 1993).

The confusion over what is (or is not) a general or special

verdict makes it difficult, and in some cases impossible, for

parties to predict which waiver rules apply to their case.

Counsel cannot even rely upon a characterization of

the verdict form by the consensus of the district court and

the parties. For even if the form is labeled “special ver-

dict,” and is so described by the trial court and all parties,

there is the risk on appeal (as happened here) of an

unexpected “gotcha” holding: retroactive re-definition of

the verdict form’s character, and a corresponding retroac-

tive application of surprise preservation rules that bar

consideration of the merits.

Surprise waiver rules like that undermine the very

foundations of the waiver doctrine. Waiver is an “inten-

tional relinquishment or abandonment of a known right or

privilege.” Freytag v. Commissioner, 501 U.S. 868, 894 n.2

(1991) (quotation omitted) (emphasis added). To be inten-

tional, abandonment of the right must be knowing. See

Cordrey v. Euckert, 917 F.2d 1460, 1465 (6th Cir. 1990); see

also Collier v. Estelle, 488 F.2d 929, 932 (5th Cir. 1974).

Thus, the premise for finding a review-barring waiver

must be that the party knew it was waiving rights in

failing to object, and so intentionally give up the right to

review. An unpredictable waiver doctrine defeats the

premise: a party who cannot predict the duty to object does

not knowingly relinquish rights in not objecting.

Without review by this Court, courts of appeals will

continue to apply unpredictable rules for preservation of

objections in direct contradiction with the “intentional

relinquishment” requirement that justifies imposition of

waiver’s harsh consequences in the f-zst place.

~

8

B. The Conflict Over The Need To Object To

Submission Of Potentially Conflicting

Theories.

The circuits also conflict over interpretation of Rule

51, and whether it requires a party to object to the sub-

mission of multiple theories to the jury to preserve objec-

tions to later inconsistency.

The First, Second, and possibly Eleventh, Circuits

require an objection to the submission of multiple theories

before the jury is charged. See Trull, 311 F.3d at 63;

Babcock v. General Motors Corp., 299 F.3d 60, 64 (1st Cir.

2002); Jarvis, 283 F.3d at 53-65; Mason, 307 F.3d at 1276

n.7 & n.8. In contrast, the Third Circuit has rejected the

contention that failure to object to jury instructions and

interrogatories under Rule 51 precludes a later argument

that the verdicts are inconsistent. See Loughman, 6 F.3d

at 103. Several other courts implicitly agree with the

Third Circuit position by not requiring such an objection

before conducting their review. See, e.g., Oja v. Howmedica

Inc., 111 F.3d 782, 790 (10th Cir. 1997); Tipton v. Michelin

Tire Co., 101 F.3d 1145, 1147-48 (6th Cir. 1996); Werner v.

Upjohn Co., 628 F.2d 848, 860 (4th Cir. 1980).

This conflict leaves parties baffled about the proper

time and way to object in cases at risk for inconsistent

verdicts. The dilemma is worse still where the apparently-

required objection is futile because the substantive law

expressly permits the submission of the potentially con-

flicting theories that the procedural law would require

parties to oppose. Indeed, this case is the paradigm: The

First Circuit held that New Hampshire law allows both

strict liability and negligence theories to go to the jury, yet

condemned Volkswagen for failing to object to the submis-

sion of both to the jury. Trull, 311 F.3d at 63. Rule 11 and

9

ethical obligations potentially put counsel at risk if they

make objections that are not well-taken. In re Grantham

Bros., 922 F.2d 1438, 1442 (9th Cir. 1991) (Rule 11 sanc-

tions imposed where objections in complaint lacked any

basis in law or fact); Jazzland, Lid. v. Bordenave, 1999

U.S. Dist. LEXIS 7818, *6 (E.D. La. May 20, 1999) (party

ordered to show cause why Rule 11 sanctions should not be

imposed for frivolous objections in motion). And even if

permitted, token objections doomed to failure are a waste

of judicial time and should not be encouraged.’ The uncer-

tain preservation rules, however, encourage futile objec-

tions and could even force counsel to choose between

preserving their clients’ rights and complying with ethical

rules. That cannot be right.

The conflicts here are real. The Court should resolve

them. :

II. THE CONFLICTS ARE IMPORTANT TO

RESOLVE: RECURRING PROBLEMS, DISPA-

RATE RESULTS, AND UNSUPPORTED VER-

DICTS.

This Court will grant review to resolve conflicts and

assure uniform application of the Federal Rules of Civil

Procedure. See Becker v. Montgomery, 532 U.S. 757, 762

(2001) (granting certiorari to ensure uniformity in Federal

* Requiring objections that the governing law holds meritless also

forces parties to undermine their own credibility, in turn imperiling

later motions or objections. Honeycutt v. Mahoney, 698 F.2d 213, 219

(4th Cir. 1983) (counsel should “not [ ] annoy or antagonize judge or jury

by objections perceived by the judge to be meritless”). Preservation

rules should not be designed to alienate the court.

10

Rules of Appellate Procedure); United States v. F & M

Schaefer Brewing Co., 356 U.S. 227, 230-31 (1958) (grant-

ing certiorari because conflict involves application of

provisions of federal rules); superseded by statute on other

grounds, 352 F.2d 942 (D.C. Cir. 1965). That alone is

reason for review here. The recurrence of the issue, the

disparate results under the conflicting rules, and the

erroneous judgments that result, make the case for review

stronger still.

A. Inconsistent Verdicts Are A Recurring

Problem.

The inconsistent verdict issue is a recurring one.

Every case involving overlapping legal theories presents

the potential for inconsistent verdicts. There are scores of

reported cases addressing the problem, and countless

unreported dispositions. In 2002 alone, the First Circuit

decided two cases addressing the same inconsistent

verdict issue under New Hampshire law (this case and

Babcock v. General Motors Corp., 299 F.3d 60, 64 (1st Cir.

2002)), and that Court has yet another before it in 2003.

See Cabrera v. Hyundai Motor Co., No. 02-2232 (fully

briefed and to be argued this summer). That is just one

issue in one circuit; 2002 saw many other inconsistent

verdict issues. See, e.g., Howard v. Antilla, 294 F.3d 244,

250-251 (1st Cir. 2002); Jarvis, 283 F.3d at 55-56; Mason v.

Ford Motor Co., 307 F.3d at 1274-75; El-Hakem v. BJY,

Inc., 2003 U.S. Dist. LEXIS 8143, *18 (D. Or. March 19,

2003); Frazier v. Boyle, 206 F.R.D. 480, 493 (D. Wi. 2002);

Aerotech Res., Inc. v. Dodson Aviation, Inc., 191 F. Supp.

2d 1209, 1220-21 (D. Ks. 2002).

11

In the field of product liability alone, inconsistent

verdicts are a perennial problem. The cases are frequent

diversity cases in federal court, governed by state law that

often invites inconsistent verdicts. Most states, like New

Hampshire, recognize product design claims based upon

both strict liability and negligent design. See, e.g., Jiminez

v. Sears, Roebuck & Co., 482 P.2d 681, 686 (Cal. 1971);

Lavoie v. Pac. Press & Shear Co., 975 F.2d 48, 56-57 (2d

Cir. 1992) (Vermont law); Brown v. Yamaha Motor Corp.,

691 P.2d 577, 579-80 (Wash. Ct. App. 1984); Peterson v.

Little-Giant Glencoe Portable Elevator Div. of Dynamics

Corp., 349 N.W.2d 280, 284 (Minn. Ct. App. 1984), aff’d in

part, rev'd in part, 366 N.W.2d 111 (Minn. 1985). Both

claims have as a predicate a design defect; if a design is

not defective, it is not negligent to adopt it.

A manufacturer logically cannot be held liable for

failing to exercise ordinary care when producing

a product that is not defective because: (1) if a

product is not unreasonably dangerous because

of the way it was manufactured, it was not negli-

gent to manufacture it that way and (2) even if

the manufacturer was somehow negligent in the

design or production of the product, that negli-

gence cannot have caused the plaintiff’s injury

because the negligence did not render the prod-

uct “unreasonably dangerous.”

Garrett v. Hamilton Controls, Inc., 850 F.2d 253, 257 (5th

Cir. 1988) (applying Texas law). See also Oja, 111 F.3d at

791; Tipton v. Michelin Tire Co., 101 F.3d 1145, 1150-51

(6th Cir. 1996); Witt v. Norfe Inc., 725 F.2d 1277, 1279-80

(11th Cir. 1984). Nonetheless, the states generally do not

bar submission of both claims to the jury, and often have

standard verdict forms that invite inconsistent verdicts by

asking the jury to address negligent design even if the jury

12

has found no design defect on the strict liability claim. See

Cal. Jury Instructions, Civil, Book of Approved Jury

Instructions (BAJI) 16.11, Form of Special Verdict: Negli-

gence and Products Liability (9th ed. 2003); Minnesota

Practice Series: Civil Jury Instruction Guides, Special

Verdict Form 75.94 (4th ed. 1999); Florida Standard Jury

Instructions in Civil Cases: IX Model Jury Charges and

Verdict Forms, Special Verdict Form for Model Charge 8

(2001). That makes for an inconsistent verdict nightmare:

findings of negligent design in making a product with no

defect.

This Court cannot change the state-law risk of

inconsistent verdicts, but it can give clear guidance about

the federal procedure for addressing it, so parties know

what they must do to object, and courts know what they

must do to avoid the problem or correct it when it arises.

That guidance would be very helpful to many parties and

courts.

B. Disparate Results And Unfair Verdicts.

A finding of waiver bars consideration of the merits.

See Phav v. Trueblood, Inc., 915 F.2d 764, 769 (1st Cir.

1990); see also United States v. Walton, 255 F.3d 437, 441

(7th Cir. 2001) (waived issue “extinguishes all appellate

review of the issue”); Eagle Eye Fishing Corp. v. U.S. Dept.

of Commerce, 20 F.3d 503, 504 (1st Cir. 1994) (failure to

object during administrative appeal barred judicial re-

view).

Avoiding the merits is harsh in any case, and is

particularly harsh where the issue is inconsistent verdicts.

Inconsistent verdicts “undermine[] the validity and integ-

rity of the judgment and may, in fact, run afoul of the

13 J

Seventh Amendment by allowing the District Court to

usurp the jurys function.” See Mercer v. Long Mfg. N.C.

Inc., 671 F.2d 946, 948 n.1 (5th Cir. 1982); see also Figg v.

Schroeder, 312 F.3d 625, 643 (4th Cir. 2002) (citing Mer-

cer); Harris v. Rivera, 454 U.S. 339, 346 (i981) (in criminal

bench trial, inconsistency alone is not intolerable but

might “constitute evidence of arbitrariness that would

undermine confidence in the quality of the judge’s conclu-

sion”). Entry of judgment on inconsistent verdicts neces-

sarily disregards jury findings and gives little assurance

that a fair and correct disposition was reached. See Au-

wood v. Harry Brandt Booking Office, Inc., 850 F.2d 884,

890-91 (2d Cir. 1988) (“Though [] Rule [49(a)] does not give

guidance as to the proper course of action ... it is plain

that proper deference to the parties’ Seventh Amendment

rights to a jury trial precludes entry of a judgment that

‘disregards any material jury finding.”). That is true

whether there was an objection or not; a judgment of

liability based on negligent design disregards the jury’s

finding that the design was safe, and makes no sense.

Disparate waiver rules in the inconsistent verdict

setting are outcome determinative: they lead to disparate

results in like cases. Verdicts found inconsistent in a

circuit with lax preservation rules will lead to a new trial.

See Bonin v. Tour West Inc., 896 F.2d 1260, 1262-63 (10th

Cir. 1990); Los Angeles Nut House v. Holiday Hardware

Corp., 825 F.2d 1351, 1354-56 (9th Cir. 1987). But, as this

case demonstrates, comparable verdicts in a circuit with

strict preservation rules will lead to an affirmance of a

judgment, even if the underlying verdicts clash and entry

of judgment on one necessarily disregards the findings on

the other.

l4

That is fundamentally unfair. The same Rules of Civil

Procedure govern all the district courts. It is not fair — or,

we submit, constitutional — to permit strict preservation

rules to sanction judgment entered against parties exon-

erated by the jury. It is not fair that disparate interpreta-

tions of preservation rules mean one party wins and

another loses — not just the appeal, but the case — on the

same objection record. See Hanna v. Plumer, 380 U.S. 460,

472-73 (1965) (“One of the shaping purposes of the Federal

Rules is to bring about uniformity in the federal courts”)

(citation omitted).

The Court should grant certiorari to provide guidance

on the proper rules of waiver under Federal Rules of Civil

Procedure 49 and 51.

,%

v

CONCLUSION

For these reasons, PLAC respectfully urges the Court

to grant the Petition.

Respectfully submitted,

HUGH F. YOUNG LESLIE G. LANDAU

Of Counsel Counsel of Record

PRODUCT LIABILITY ADVISORY RIANNE E. NOLAN

~ COUNCIL, INC. BINGHAM MCCUTCHEN LLP

1850 Centennial Park Dr., Three Embarcadero Center

Ste. 510 San Francisco, CA

Reston, VA 20191 94111

(703) 264-5300 (415) 393-2000

la

CORPORATE MEMBERS/PRODUCT

LIABILITY ADVISORY COUNCIL, INC.

23-May-03

3M

Allegiance Healthcare

Corporation

Altec Industries

Altria Corporate Services,

Inc.

American Household, Inc.

American Suzuki Motor

Corporation

Amgen Inc,

Andersen Corporation

Anheuser-Busch Companies

Appleton Papers, Inc.

Astec Industries

Aventis Pharmaceuticals,

Inc.

BASF Corporation

Baxter International, Inc.

Bayer Corporation

Beretta U.S.A. Corp.

BIC Corporation

Biro Manufacturing

Company, Inc.

Black & Decker (U.S.) Inc.

BMW of North America, LLC

Boeing Company

Bombardier Recreational

Products

BP America Inc.

Bridgestone/Firestone, Inc.

Briggs & Stratton Corporation

Bristol-Myers Squibb

Company

Brown and Williamson

Tobacco

Brown-Forman Corporation

Caterpillar Inc.

CCA Industries, Inc.

Centerpulse USA Inc.

Chevron Corporation

Compaq

Continental Tire North

America, Inc.

Cooper Tire and Rubber

Company

Coors Brewing Company

Crown Equipment Corporation

DaimlerChrysler Corporation

Dana Corporation

Deere & Company

Delphi Corporation

Dorel Juvenile Group, Inc.

E & J Gallo Winery

E. I. DuPont de Nemours

and Company

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Engineered Controls

International, Inc.

Estee Lauder Companies

ExxonMobil Corporation

Federal Signal Corporation

FMC Corporation

Ford Motor Company

Freightliner LLC

General Electric Company

General Motors Corporation

Georgia-Pacific Corporation

GlaxoSmithKline

GLOCK, Inc.

Great Dane Limited

Partnership

Guidant Corporation

2a

Harley-Davidson Motor

Company

Harsco Corporation

Honda North America, Inc.

Hyundai Motor America

ICON Health & Fitness, Inc.

Illinois Tool Works Inc.

_ International Truck and

Engine Corporation

Isuzu Motors America, Inc.

Johnson & Johnson

Johnson Controls, Inc.

Joy Global Inc., Joy Mining

Machinery

Kawasaki Motors Corp.,

U.S.A.

Kia Motors America, Inc.

Kolcraft Enterprises, Inc.

-Kraft Foods North America,

Inc.

Lincoln Electric Company

Masco Corporation

Mazda (North America), Inc.

McNeilus Truck and

Manufacturing, Inc.

Medtronic, Inc.

Mercedes-Benz of

North America, Inc.

3a

Michelin North America,

Inc.

Miller Brewing Company

Mitsubishi Motors

North America, Inc.

Niro Inc.

Nissan North America, Inc.

Novartis Pharmaceuticals

Corporation

PACCAR Inc

Panasonic

Pentair, Inc.

Pfizer Inc.

Pharmacia Corporation

Polaris Industries, Inc.

Porsche Cars

North America, Inc.

Purdue Pharma L.P.

Raymond Corporation

Raytheon Aircraft Company

Remington Arms Company,

Inc.

Rheem Manufacturing m

RJ Reynolds Tobacco

Company

Schering Corporation

Schindler Elevator

Corporation

SCM Group USA Inc. .

Sears, Roebuck and Co. |

Shell Oil Company

Siemens Corporation

Smith & Nephew, Inc.

Snap-on Incorporated

Sofamor Danek, Medtronic

Inc.

Solutia Inc.

Sturm, Ruger & Company,

Inc.

Subaru of America, Inc.

Synthes (U.S.A.)

Textron, Inc.

The Dow Chemical Company

The Goodyear Tire &

Rubber Company

The Heil Company

The Procter & Gamble

Company

The Sherwin-Williams

Company

Thomas Built Buses, Inc.

Toro Company

Toshiba America

Incorporated

Toyota Motor Sales, USA,

Inc.

4a

TRW Automotive US LLC

UST (U.S. Tobacco)

Volkswagen of America,

Inc.

Volvo Cars of

North America, Inc.

Vulcan Materials Company

Water Bonnet

Manufacturing, Inc.

Whirlpool Corporation

Wilbur-Ellis Company

Wyeth

Yamaha Motor Corporation,

U.S.A.

Zimmer, Inc.