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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0908%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2005

## Text

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>

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0908%3A0. Public record. Not legal advice.