Prologue — Bryte v. American American Household, Inc., fka Sunbeam Corporation (No. 05-1145)

O51145MA2 G - 2006

No.OFFICE OF THE CLERK

In the

Supreme Court of the United States

Davip BryTE, Personal Representative of the

Estate of Lova E. Bryte, deceased; DAvip BRYTE;

KATHY B. SMITH; JAMES B. SmitH; M.E. Situ,

a minor, by and through her legal guardian,

Kathy B. Smith; and Donna J. MILLER,

Petitioners,

ee

AMERICAN HOUSEHOLD, INCORPORATED, formerly known as

Sunbeam Corporation; and SUNBEAM Propucts, INCORPORATED,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

GEORGE EDwARD MCLAUGHLIN

Counsel of Record

WILLIAM J. HANSEN

McDermott, HANSEN & MCLAUGHLIN, LLP

1890 GAYLORD STREET

Denver, CO 80206-1211

(303) 399-6037

Counsel for Petitioners

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTIONS PRESENTED

Has the United States Court of Appeals for the Fourth

Circuit entered an opinion in conflict with precedent set

by this Court and several courts of appeals for the various

circuits, which hold that the substantive law of a state is

not to be nullified by the application of the procedural

rules of the district court?

Has the court of appeals departed from the accepted and

usual course of judicial proceedings by not conducting a

de novo review of the pertinent legal issues in the appeal

below, to wit, the district court’s failure to apply the

substantive West Virginia state law of product liability to

the issue of the petitioners’ burden of proof, so as to call

for an exercise of this Court’s supervisory power?

Has the court of appeals sanctioned a departure by the

district court from the accepted and usual course of

judicial proceedings by affirming the district court not

applying the substantive West Virginia state law of

product liability to the issues of the petitioners’ burden of

proof, in violation of Erie R.R. v. Tompkins, 304 U.S. 64,

58 S. Ct. 817, 82 L. Ed. 1188 (1938), and the opinions of

various courts of appeals?

Did the court of appeals decide an important federal

question in a way that conflicts with other relevant

decisions of this Court and several courts of appeals, to

wit, was the district court’s application of the Federal

Rules of Evidence to bar the petitioners’ expert from

expressing any opinions as to the cause of the fire in issue

a violation of petitioners’ right to have their case heard

and decided pursuant to the substantive West Virginia

state law of product liability, which permits evidence of

possible causes of the fire, and does not require

elimination of all other possible causes of the fire, in a

plaintiff meeting their burden of proof?

Did the court of appeals decide an important federal

question in a way that conflicts with relevant decisions of

this Court and several courts of appeals, to wit, was the

district court’s application of the Federal Rules of

Evidence to bar all opinions of the petitioners’ expert on

the issue of the known defects that cause fires in the

product at issue, a violation of petitioners’ right to have

their case heard and decided pursuant to the substantive

West Virginia state law of product liability, which permits

evidence of known defects in the product to meet a

plaintiff's burden of proof?

Did the court of appeals decide an important federal

question in a way that conflicts with relevant decisions of

this Court and several courts of appeals, to wit, did

exclusion of all evidence of the petitioners’ witnesses,

both lay and expert, on the issue of other similar incidents

of fire caused by the same design of the product in issue

in this civil action, violate petitioners’ right to have their

case heard and decided pursuant to the substantive West

Virginia state law of product liability, which permits

evidence of other similar incidents to meet a plaintiff's

burden of proof?

Were material facts and legal principles overlooked in the

opinion of United States Court of Appeals for the Fourth

Circuit, such that the substantive law of the state of West

Virginia, as stated in the West Virginia malfunction

theory of product liability, concerning burden of proof,

was not applied to the facts in the trial court record of this

case?

RULE 14.1(b) STATEMENT

PARTIES TO PROCEEDING

Petitioners are David Bryte, Personal Representative of

the Estate of Lova E. Bryte, deceased; David Bryte; Kathy

B. Smith; James B. Smith; M. E. Smith, a minor, by and

through her legal guardian, Kathy B. Smith; and Donna J.

Miller.

Respondents are American Household, Incorporated,

formerly known as Sunbeam Corporation; and Sunbeam

Products, Incorporated.

In addition, Sears Roebuck and Company was a party to

the proceedings below, but voluntarily dismissed prior to

trial.

RULE 29.6 STATEMENT

None of the petitioners are corporations. There is no

parent corporation or publically held company owning 10%

or more of any petitioner.

iv

TABLE OF CONTENTS

Question Presented

Rule 14.1(b) Statement - Parties to the Proceeding

Rule 29.6 Statement

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Relevant Statutory Provisions

Statement of the Case

Factual Background

Reasons Relied on for the Allowance of the Writ . . .

Argument

A. The West Virginia “malfunction theory” of

product liability is substantive state law. ...... 7

. Ina diversity case, the federal court must conform

to the substantive law of the state. .......... 8

Vv

C. The substantive law of West Virginia was required

to be considered in the application of the Federal

Rules of Evidence to petitioners’ evidence on-the

burden of proof at trial

. The opinion of the court of appeals is in violation

of the doctrine of Erie v. Tompkins, and is in

conflict with other opinions of the Fourth Circuit,

and numerous other courts of appeals ........ 14

E. Entitlement to de novo review ............ 20

F. The substantive law of West Virginia was not

applied to petitioners’ lay witness testimony in de

ROWING eS ORES ERE 26

Conclusion

Appendix

Appendix A:

November 2!, 2005, Published Opinion, Bryte v.

Am. Household, Inc. , 429 F.3d 469 (4" Cir. 2005)

Appendix B:

December 19, 2005, United States Court of

Appeals for the Fourth Circuit Unpublished

Opinion, denying Petition for Rehearing and

Rehearing En Banc

Appendix C:

Excerpts from trial court record of December 8,

2003, testimony of witness Mack Dennis .... 23a

Appendix D:

Excerpts from trial court record of December 8,

2003, testimony of witness William T.

Cronenwett, Ph.D

Appendix E:

Excerpts from trial court record of December 8,

2003, testimony of witness Donna Miller .... 36a

Appendix F:

Excerpts from trial court record of December 8,

2003, re: comments of district court judge to jury

during voir dire

Appendix G:

Excerpts from trial court record of December 8,

2003, re: Petitioners’ Proffer of Evidence .... 52a

Vil

TABI ‘FF AUTHORITIES

Cases

Adkins v. K-Mart Corp.,

204 W. Va. 215, 511 S.E. 2d 840 (1998)

Anderson v. Chrysler Corp.,

184 W. Va. 641, 403 S.E. 2d 189 (1991)

Brown v. CSX Transp. Co..,

18 F.3d 245 (4" Cir. 1994)

Byrd v. Blue Ridge Rural Elec., Co-op,

356 U.S. 525, 2 L.Ed. 2d 953, 78 S. Ct. 893

(1958)

Bryte v. American Household, Inc.,

429 F.3d 469 (4" Cir. 2005)

Cavallo v. Star Enterprises,

100 F.3d 1150 (4" Cir. 1996)

Conway v. Chemical Leaman Tank Lines, Inc.,

540 F.2d 837 (5" Cir. 1976)

Daigle v. Maine Medical Ctr.,

14 F.3d 864 (1* Cir. 1994)

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469

(1993)

DiAntonio v. Northampton-Accomack Memorial Hosp. ,

628 F.2d 287 (4" Cir. 1980)

Vill

Ealy v. Richardson-Merrell, Inc.,

23 U.S. App. D.C. 137, 897 F.2d 1159 (D.C. Cir.

Erie R.R. v. Tompkins,

304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188

(1938) ly Ovte B4, 35

Feldman v. Allstate Ins. Co.,

322 F.3d 660 (9" Cir. 2003)

Forrestal v. Magendaniz,

848 F.2d 303 (1" Cir. 1988)

Hottle v. Beech Aircraft Corp.,

47 F.3d 106 (4" Cir. 1995)

llosky v. Michelin Tire Corp.,

172 W. Va. 435, 307 S.E. 2d 603 (1983)

Long v. City of Weirton,

185 W. Va. 741, 214 S.E. 2d 832 (1975)

Moe v. Avions Marcel Dassault-Breguet Aviation,

727 F.2d 917, 931 (10" Cir. 1984), cert. denied,

469 U.S. 853, 105 S. Ct. 176, 83 L. Ed. 2d 110,

(1984)

Perlmutter v. United States Gypsum Co.,

4 F.3d 864 (10" Cir. 1993)

Rexrode v. American Laundry Press Co..,

674 F.2d 826, (10" Cir. 1982), cert. denied, 459

U.S. 862, 103 S. Ct. 137, 74 L. Ed. 2d 117 (1982) . 16

iX

Riley v. De’Longhi Corp., 2000 U.S. App. LEXIS 27802

(4" Cir. 2000), [unpublished appeal from the

United States District Court for the District of

Maryland]

Salve Regina College v. Russell,

499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed. 2d

190 (1991) 21, 23, 24

Skeen v. C & G. Corp.,

155 W. Va. 547, 185 S.E. 2d 493 (1971)

Woods v. Holy Cross Hosp.,

591 F.2d 1164 (5" Cir. 1979)

Rules

Fed. R. Civ. P. 50

Fed. R. Evid. 702

Codes

28. U.S.C. §1254(1)

28.U.S.C. § 1332

Other Authorities

RESTATEMENT (THIRD) OF TORTS - PRODUCT LIABILITY,

§ 3 (1998)

Petitioners David Bryte, Personal Representative of the

Estate of Lova E. Bryte, deceased, David Bryte, Kathy B.

Smith, James B. Smith, M. E. Smith, a minor, by and through

her legal guardian, Kathy B. Smith, and Donna J. Miller,

respectfully petition for a Writ of Certiorari to review the

Judgment of the United States Court of Appeals for the Fourth

Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit is published at Bryte v. Am. Household, Inc.,

429 F.3d 469 (4" Cir. 2005). (App. la) Petition for

Rehearing and Rehearing En Banc was denied without opinion

in an Unpublished Order issued December 19, 2005. (App.

21a)

JURISDICTION

The United States Court of Appeals for the Fourth Circuit

issued its Opinion on November 21, 2005, Bryte v. Am.

Household, Inc., 429 F.3d 469 (4" Cir. 2005)(App. 1a), and

its Order Denying Rehearing and Rehearing En Banc on

December 19, 2005. (App. 21a) The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Fed. R. Civ. P. 50. Judgment as a Matter of Law in Jury

Trials.

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully

heard on an issue and there is no legally sufficient

2

evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue

against that party and may grant a motion for judgment

as a matter of law against that party with respect to a

claim or defense that cannot under the controlling law

be maintained or defeated without a favorable finding

on that issue.

Fed. R. Evid. 702. Testimony by Experts.

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an

opinion or otherwise, if (1) the testimony is based

upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably

to the facts of the case.

STATEMENT OF THE CASE

This Petition seeks review of a decision of the United

States Court of Appeals for the Fourth Circuit affirming a

Rule 50 Judgment as a Matter of Law in favor of the

respondents (defendants below) from the United States District

Court for the Northern District of West Virginia. The basis

for federal jurisdiction of the United States District Court for

the Northern District of West Virginia was pursuant to 28

U.S.C. §1332. Diversity exists between the plaintiffs and the

defendants and the amount in controversy is in excess of the

jurisdictional amount.

i>