Opposition Brief — CSX Transportation, Inc. v. Williams (No. 06-1232)

a oo FILED

No. 06-1232 :

MAY § ~ 2007 !

js OFFICE OF THE CLERK

jn Ohe SUPREME COURT, U.S.

Supreme Court of the Gntled States

S

CSX TRANSPORTATION, INC.

and RONALD PAUL BOWEN,

Petitioners,

Vv.

EARTHA MAE WILLIAMS,

as Personal Representative of the Estate

of Gregory Stanley Williams,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA

+

BRIEF IN OPPOSITION

+

John E. Parker

Counsel of Record

J. Paul Detrick

Grahame E. Holmes

PETERS, MURDAUGH, PARKER,

ELTZROTH & DETRICK, P.A.

101 Mulberry Street East

Post Office Box 457

Hampton , South Carolina 29924

(803) 943-2111

Counsel for Respondent

THE LEX GROUP®© ¢ 1750 K Street N.W. @ Suite 475 @ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 ¢www.thelexgroupdc.com

TABLE OF CONTENTS

PRA EEE cr eccccccorsccsescsceseesesssereesenes

PPR IVEEIVE GE BEES CASE ...cccccccoservecssceesecsoreeses

I.

I].

If.

IV.

THE PETITIONER INVITED THE

ERROR OF WHICH IT NOW

Fe

THE PETITIONER HAS NOT

BEEN INJURED AND DOES NOT

HAVE ARTICLE III STANDING

TO INVOKE THE COURT'S

EE REIN vesrcecerceseceveeseveseserscasens

THERE HAS NOT BEEN A FINAL

DECISION ON PUNITIVE

DAMAGES AS REQUIRED FOR

REVIEW BY THE COURT................

THE PETITIONER HAS NOT

PRESENTED QUESTIONS OF

SUFFICIENT GENERAL

IMPORTANCE FOR REVIEW BY

ET tdstecsseieaversnteresterceoseetec

THE WRIT FOR CERTIORARI IS

NOT CONSISTENT WITH

SUPREME COURT RULE 10............

ill

TABLE OF AUTHORITIES

PAGE(S)

CASES

Alexander v. Riga,

Ee iterinciicetttttcineictinenromestioniias 11

Anderson v. South Carolina Department of Highways

and Public Transportation,

322 S.C. 417, 472 S.E.2d 253 (1996)........0000scce0ee0s 23

ASARCO, Inc. v. Kadish,

Be ee I ED sivehinatectan inicssniciormidtherennsceaiiaitll 7

Black v. Fidelity & Guaranty Ins. Underwriters, Inc.,

Re Fe FE Ge BINT iatnticniccntscsncnssvenstanssciveiscenes 11

BMW of North America, Inc. v. Gore,

Be EE cis se aniceescaciceoneiveitonsiniiibeesneien 2,19

Bowman v. Bowman,

357 S.C. 146, 591 S.E.2d 654 (S.C. App. 2004)... 6

Brooks v. Woodline Motor Freight, Inc.,

Be ee EC ile BI scien rscneensssisinnnsenctannsins 11

Celle v. Filipino Reporter Enterprises, Inc.,

BPP Ee BOD CEC, BGO) rcescovscssssnssisorsosivivosnsee 11

Che v. Massachusetts Bay Transp. Authority,

ee ae ee ice A cca ieistrstticinntntiinteediins 11

iV

Cole v. South Carolina Electric & Gas, Inc.,

355 S.C. 183, 584 S.E.2d 405 (2003)... ee

Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,

FOG I his cescnnance

Cox Broadcasting Corp. v. Cohn,

US GOWER. kk ee

Defender Industries, Inc. v.

Northwestern Mut. Life Ins. Co.,

938 F.2d 502 (4! Cir. 1991) .ccccssssssssssessseeeseeeeee

E.E.O.C. v. Heartway Corp.,

466 F.3d 1156 (10 Cir, 2006)..........ccsesescoresesses

Ellison v. Simmons,

238 S.C. 364, 120 S.E.2d 209 (1961)... eee

F.W. Woolworth Co: v. Contemporary Arts,

CAUSED is coccackecne

First Sav. Bank v. McLean,

314 S.C. 361, 444 S.E.2d 513 (1994)... cee

Gamble v. Stevenson,

305 S.C. 104, 406 S.E.2d 350 (1991)... eee

Glasscock, Inc. v. United State Fid. & Guar. Co.,

348 S.C. 76, 557 S.E.2d 689 (Ct. App. 2001)......

Jannotta v. Subway Sandwich Shops, Inc.,

125 F.3d 503 (7! Cir. 1997) ....ccsccessesessseseesseseeseee

Layne & Bowler Corp. v. Western Well Works,

Be CME SIU ctsrpencersvsocsennrqnsetoseeeneseonnisanegietiein 9

Love v. Oswald,

472 SAL. S47, 291 $.E.28 FCB (1979).c0ccvreserssseveseees 21

Nike v. Kasky,

539 U.S. 654 (2003) ...........cccccee sniannmneiaudlodeaiiins 7,9

Philip Morris USA v. Williams,

4 Aa, RARE RCRA enen pee sommes passim

Sand Hill Energy, Inc. v. Smith,

WEE DWV SG TID LAY. IG) osccccrvcoseesonsevevecveesoenvers 4,5

State v. Grovenstein,

FEF CRs £OO GA. BOPP evececorcrsexessvervsterssorecseenss 17

State Farm v. Campbell,

Bs Oe GD evteviscvinescnvennsencotoumectiniteniin passim

Straw v. Chase Revel, Inc.,

cb wb isi le noe 11

Ticor Title Ins. Co. v. Brown,

II sists aineieaihahieshemnienianoenitien 10

Todd v. South Carolina Farm Bureau Mutual Ins. Co.,

287 S.C. 190, 336 S.E.2d 472 (1985)... ee 23

Webb v. CSX Transp., Inc.,

364 S.C. 639, 615 S.E.2d 440 (2005)... 3,4

vi

White v. Ford Motor Co.,

a es 11

Whits v. Burlington Northern & Santa Fe R. Co.,

964 F.3d 789 (6™ Cir. 2008) ......0.csececcecressssssersseeers 11

Wohlwend v. Edwards,

‘796 N.E.2d 781 (Ind. Ct. App. 2003) ...........0000: 4,5

STATUTES

Be edhe OF IE ccletsincacovestshienistamsnsacaiiuininieepied 7, 8,25

ele GI FIRR. BB esse rntesencrerecevssetenvenneeneninetin 3,11

RULES

ena a ae aa re ciihiniisenchntnciasedhiincnceunsiinnaldntinnleincebiipteniéien 10

age aaa sa lchcciiinsicesedeiiassountinetosaesinssdaneiicvsivauemmnsneeniipin inanieeoubine 18

Sup. Ct. R. oe ssauielpasisaplicoseicainadnerioiiennimeeniiaicuniaiinial 12

Be Gd Wie. ie cicbeschcoiolectnssicuaieticcappicsapiimapcabaladnmepameontdn 11

a tac in MUNI Saececassicsaseicensicsietteeesiactailcdonieahaamponniiasioiie 10

REGULATION

gS FEY. SUNN ORE RENCE MT Ne aes OO Re 23

OTHER AUTHORITY |

Seb S. FUROR COUTES © £0 O ose cccvicecccrctnncsevevecnescrsseceres 10

STATEMENT OF THE CASE

This case arises out of the collision of a truck

driven by Gregory Williams and a ballast regulator, a

piece of the Petitioner's railroad equipment, at

Petitioner's railroad grade crossing on January 3, 2001, in

Swansea, South Carolina. Mr. Williams was killed in the

collision. On January 23, 2001, Respondent Eartha Mae

Williams, Gregory Williams’ mother, filed this wrongful

death action against the Petitioner CSX Transportation,

Inc. and Ronald Paul Bowen for the death of her son. /

The Respondent alleged that Ronald Paul Bowen,

the operator of the ballast regulator, was negligent and

reckless in failing to yield the right-of-way, in failing to

stop at the crossing, in failing to warn highway traffic of

his approach, in proceeding over the crossing when the

crossing was not clear, in failing to properly sound the

horn, in operating the ballast regulator at an excessive

rate of speed, in failing to keep a proper lookout, and in

violating Petitioner’s on-track operating rules. The

Respondent alleged that Petitioner was vicariously liable

for Mr. Bowen’s actions. The Respondent further alleged

Petitioner was liable for failing to maintain adequate

warning devices at its crossing, failing to properly

maintain the vegetation on its right-of-way to provide

adequate sight distance for motorists using the crossing,

and for allowing an unqualified and incompetent person

to operate its ballast regulator. The Petitioner admitted

that there was a collision and that Mr. Williams died as a

result of the collision, but otherwise denied Respondent's

allegations.

The trial of the case began on October 14, 2003,

and concluded on October 30, 2003. Ronald Paul Bowen

was dismissed as a defendant prior to the trial. The jury

returned a verdict in favor of Respondent in the amount

of 4.5 million dollars actual damages and 7.5 million

dollars punitive damages.

The Petitioner filed post-trial motions seeking a

judgment notwithstanding the verdict, new trial, and

new trial nisi remittitur. The trial court held a post trial

review of the punitive damages award pursuant to

Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991),

State Farm v. Campbell, 538 U.S. 408 (2003), and BMW of

North America, Inc. v. Gore, 517 U.S. 559 (1996). The trial

court entered an order reducing the punitive damages

award by 3 million dollars. The trial court denied the

other post-trial motions. (Petitioner’s App., 13a-21a).

After the trial court ruled on the Petitioner's post

trial motions, the Respondent filed a notice of appeal

from the order reducing the punitive damages award.

The Petitioner also filed a notice of appeal from the jury’s

verdict and the denial of its post-trial motions. The

Supreme Court of South Carolina exercised jurisdiction

over the appeal without a decision of the South Carolina

Court of Appeals.

On appeal, the Petitioner alleged, among other

things, that the trial court erred by not bifurcating the

issues of liability and punitive damages for separate

. trials, by not using Petitioner's special verdict form, and

by not charging the jury with the Petitioner’s proposed

jury charges on punitive damages. The Petitioner argued

this error warranted “a new trial on punitive damages.”

After hearing oral arguments, the Supreme Court

of South Carolina issued an unpublished opinion on

January 2, 2007. The Supreme Court of South Carolina

affirmed the jury’s award of actual damages and reversed

the jury’s award of punitive damages. The Supreme

Court of South Carolina found the trial court erred in

charging the jury on negligence per se, but that the

erroneous charge did not constitute reversible error

because the Petitioner failed to show that it was “injured

and prejudiced” by the instruction as required under

South Carolina law. (Petitioner's App., 7a) The Supreme

Court of South Carolina found that the Petitioner had not

been prejudiced by the negligence per se charge because

there were a number of thoroughly developed theories of

liability presented in the case. The Supreme Court of

South Carolina reversed the jury’s award of punitive

damages because “the trial court’s jury instructions...

misstated the standard of proof for clear and convincing

evidence” for an award of punitive damages as required

under South Carolina Code Ann. § 15-33-135 (2005).

(Petitioner's App., 9a). As the Petitioner requested, the

Supreme Court of South Carolina remanded the case for

a new trial on the issue of punitive damages.

The Petitioner filed a Motion for Rehearing and

contended that a retrial on only punitive damages would

violate Petitioner's due process rights, that the Supreme

Court of South Carolina misapplied the “two issue rule,”

and that the court’s decision allows the admission of

evidence that “is constitutionally impermissible under

[the Supreme Court of South Carolina’s] decision in Webb

v. CSX Transp., Inc., 364 S.C. 639, 657, 615 S.E.2d 440, 450

(2005).” The Petitioner’s assertion in its Motion for

Rehearing that a new trial limited to punitive damages

would violate its rights of due process directly

contradicts its previous argument to the Supreme Court

of South Carolina that “[i]f [Petitioner] is not entitled to

judgment as a matter of law on punitive damages, the

improperly admitted evidence ... [is] sufficiently

prejudicial and unrelated to the cause of plaintiff's

injuries to warrant a new trial on punitive damages.” In

seeking a new trial on punitive damages before the

Supreme Court of South Carolina, the Petitioner cited

Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153 (Ky. 2004)

and Wohlwend v. Edwards, 796 N.E.2d 781, 786-87 (Ind. Ct.

App. 2003). (Appellant’s Final Brief on Behalf of

Appellant/Respondent, p. 42). The courts in each of

these cases remanded for a retrial limited to the issue of

punitive damages.

The Supreme Court of South Carolina did not

apply the “two issue rule” in upholding the jury’s award

of actual damages. The “two issue rule” was only even

mentioned in the single dissent to the court's opinion.

Further, the Supreme Court of South Carolina’s decision

was not inconsistent with its holding in Webb v. CSX

Transp., Inc., supra. The Supreme Court of South Carolina

denied Petitioner's Motion for Rehearing without

specifying the reasons for the denial. (Petitioner’s App.,

22a-23a).

REASONS FOR DENYING THE WRIT

I. THE PETITIONER INVITED THE ERROR OF

WHICH IT NOW COMPLAINS.

The Petitioner argues that a retrial of only punitive

damages will violate its constitutional rights even though

the Petitioner requested that the Supreme Court of South

Carolina grant a new trial on the issue of punitive

damages as one of the potential avenues of relief. The

Petitioner, in seeking a new trial on punitive damages,

stated:

“If [Petitioner] is not entitled to judgment

as a matter of law on punitive damages, the

improperly admitted evidence ... [is]

sufficiently prejudicial and unrelated to the

cause of plaintiff's injuries to warrant a

new trial on punitive damages. Indeed

because of the jury’s _ probable

consideration of these dissimilar matters in

assessing punitive damages, the conclusion

that a new trial is necessary is

constitutionally compelled. See Sand_Hill

Energy, Inc. v. Smith, 142 S.W.3d 153 (Ky.

2004) (new trial required where evidence of

out-of-state conduct admitted in

contravention of State Farm and no

instruction was given not to base

punishment on that conduct.). See also

Wohlwend v. Edwards, 796 N.E.2d 781,

786-87 (Ind. Ct. App. 2003) (error to admit

evidence that does not satisfy State Farm’s

causation requirement).

(Appellant's Final Brief on Behalf of Appellant/

Respondent, p. 42). The courts in Sand Hill and Wohlwend

both remanded cases for new trials limited to punitive

damages. In its argument to the Supreme Court of South

Carolina, the Petitioner distinguished between its request

for a new trial on punitive damages and a new trial

absolute whwr it argued that “not only is [Petitioner]

entitled to a new trial on punitive damages ... it is also

entitled to a new trial on liability because unreliable

expert opinions pervaded plaintiff's case.” (Appellant's

Final Brief on Behalf of Appellant/ Respondent, p. 42).

A party cannot complain when it receives the

relief it has requested from the court. F.W. Woolworth Co.

v. Contemporary Arts, 344 U.S. 228 (1952); Bowman v.

Bowman, 357 S.C. 146, 591 S.E.2d 654 (S.C. App. 2004).

The Petitioner asked the Supreme Court of South

Carolina for a new trial on the issue of punitive damages

and cited authority for its requested relief. Now that the

Petitioner has been granted the relief it requested, it

claims the relief it sought is unconstitutional. The

Petitioner cannot now complain that a new trial on

punitive damages is unconstitutional and the Petition

should be denied. Further, the Petitioner should not be

allowed to use this forum to collaterally attack the jury’s

actual damages award by now claiming a retrial of only

punitive damages is unconstitutional.

Il. THE PETITIONER HAS NOT BEEN INJURED

AND DOES NOT HAVE ARTICLE III

STANDING TO INVOKE THE COURT'S

JURISDICTION.

The Petitioner argues “the Supreme Court of

South Carolina has ruled in a manner that violates” the

holdings of Campbell and Philip Morris USA v. Williams,

549 US. __ (2007). The Supreme Court of South

Carolina did not affirm the jury’s award of punitive

damages against Petitioner and its due process rights

have not been violated. Rather, the jury’s punitive

damages award was reversed and remanded due to the

trial judge’s erroneous jury charge regarding the burden

of proof to be applied by the jury when deciding whether

to award punitive damages. The Petitioner has not

suffered any injury due to the Supreme Court of South

Carolina’s decision because there has not been an award

of punitive damages against the Petitioner.

The Court may exercise jurisdiction over a case

where the judgment of a state court causes “direct,

specific, and concrete injury to the parties who petition

for [the Court's] review, where the requisites of a case or

controversy are also met.” Nike v. Kasky, 539 U.S. 654

(2003) (citing ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989)).

However, a party does not have Article III standing to

invoke the jurisdiction of the Court where “no ‘final

judgment altering tangible legal rights’ has been

entered.” [d. Further, the Court will not extend its

jurisdiction “to cover an interlocutory ruling that merely

allows a trial to proceed.” Id.

While the Petitioner alleges it “is at grave risk that

it will have its due process rights violated,” the Supreme

Court of South Carolina’s decision is not a “final

judgment altering tangible legal rights.” Rather, the

decision is an interlocutory ruling that allows a retrial of

punitive damages. The Petitioner does not have Article

III standing to invoke the jurisdiction of the Court and

the Petition should be denied.

Ill. THERE HAS NOT BEEN A FINAL DECISION

ON PUNITIVE DAMAGES AS REQUIRED FOR

REVIEW BY THE COURT.

The Petitioner requests the Court to review an

unpublished, interlocutory decision of the Supreme

Court of South Carolina. 28 U.S.C.A. § 1257(a) provides

“final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari ...”

The state court’s decision was not a final judgment as

stated in 28 U.S.C.A. § 1257(a). Rather, the state court

remanded the issue of punitive damages for retrial.

While the Petitioner alleges any award of punitive

damages will deprive it of due process, there has yet to

be a determination as to whether any punitive damages

will be awarded against Petitioner. Because the

Petitioner has not suffered any harm and there has not

been a final judgment on punitive damages, its Petition

should be denied.

This case does not fall within any exceptions to the

finality requirement for granting a writ of certiorari as set

out in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

Each of these exceptions apply to cases where a federal

issue has been “finally decided” but there are further

proceedings yet to occur. The Supreme Court of South

Carolina has not “finally decided” any federal issue. A

ruling on the federal issues raised by Petitioner was

unnecessary because the Supreme Court of South

Carolina found the trial judge erred in her charge on

clear and convincing evidence. As these federal issues

were unnecessary to the court’s decision and were not

addressed, the Petitioner is free to raise these issues to the

trial court and, if it does not prevail on retrial, to the state

appellate courts. Since there has been no decision on

these federal issues, the outcome of Petitioner’s challenge

is not “preordained.” If the Petitioner prevails, the

federal issue will not “survive and require decision.”

Finally, a reversal of the state court on the federal issue

would not be ” preclusive of any further litigation” on the

issue of punitive damages. The parties will still have to

litigate punitive damages. Therefore, the Petition does

not fall within any of the exceptions to the finality

requirement for the issuance of a writ of certiorari and

the Petition should be denied.

Further, “ [t]he Court will not anticipate a question

of constitutional law in advance of the necessity of

deciding it.” Nike v. Kasky, supra. There will not be a

question of constitutional law for the Court to decide if

punitive damages are not awarded on retrial. At the trial

on punitive damages the Petitioner will be able to request

all the jury charges and make all objections to evidence it

made in the first trial. Therefore, there is not a necessity

to decide any issue of constitutional law and the Court

should not exercise jurisdiction over this case.

[V. THE PETITIONER HAS NOT PRESENTED

QUESTIONS OF SUFFICIENT GENERAL

IMPORTANCE FOR REVIEW BY THE COURT.

The Court has long held:

[It is very important that we be consistent

in not granting the writ of certiorari except

in cases involving the principles the

settlement of which is of importance to the

public, as distinguished from that of the

parties, and in cases where there is a real

and embarrassing conflict of opinion and

authority between the Circuit Courts of

Appeals.

Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387

(1923). “Even though the resolution of a constitutional

question would be of great practical importance to the

litigants, that is ordinarily not a sufficient reason for

granting certiorari, where the question is not of sufficient

10

general importance.” 36 C.J.S. Federal Courts § 296; See

also, Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994).

Granting the Writ of Certiorari would not resolve

any question of importance to anyone other than the

parties to this litigation. The state court's opinion

specifically states “THIS OPINION HAS NO

PRECEDENTIAL VALUE. ITSHOULD NOT BE CITED

OR RELIED ON AS PRECEDENT IN ANY

PROCEEDING EXCEPT AS PROVIDED BY RULE

239(d)(2) SCACR.”! As such, the Supreme Court of South

Carolina’s decision has no precedential value and will

not control the outcome of any other cases. Therefore,

the resolution of the constitutional question would only

be of importance to the parties to this case, if it is in fact

even important to them, and is not of sufficient general

importance to warrant a decision of the Court.

¥, THE WRIT FOR CERTIORARI IS NOT

CONSISTENT WITH SUPREME COURT RULE

10.

Contrary to the Petitioner’s contention, the

Supreme Court of South Carolina did not “decide an

important question of federal law that has not been, but

should be, settled by this Court” or decide “an important

federal question in a way that conflicts with relevant

decisions of this Court.” Sup. Ct. R. 10(c). The Supreme

Court of South Carolina reversed the award of punitive

damages because “the trial court’s jury instructions in

this case misstated the standard of proof for clear and

. “Unpublished orders have no precedential value and should

not be cited except in proceedings in which they are directly

involved.” SCACR 239(d)(2). :

11

convincing evidence” as required under South Carolina

Code Ann. § 15-33-135 (2005). The Supreme Court of

South Carolina did not decide the federal questions

presented in the Petition for Writ of Certiorari because

Petitioner raised those issues for the first time in its

Petition for Rehearing to that court. The Supreme Court

of South Carolina denied the petition without a decision

on any of the issues presently being raised. Therefore,

granting a writ is not warranted under Supreme Court

Rule 10(c).

The Court may grant a writ of certiorari where “a

state court of last resort has decided an important federal

question in a way that conflicts with the decision of

another state court of last resort or of a United States

court of appeals”. Sup. Ct. R. 10(b). There is not a split

of authority on any important federal question decided

by the Supreme Court of South Carolina in this case. In

fact, the United States courts of appeals have frequently

remanded actions to trial courts for retrials limited to the

issue of punitive damages.? Since there is not a conflict

in decisions on a federal question that needs to be

decided by the Court, this case does not fall under

Supreme Court Rule 10(b).

3 See, Che v. Massachusetts Bay Transp. Authonty, 342 F.3d 31 (15

Cir. 2003); Celle v. Filipino Reporter Enterprises, Inc., 209 F.3d 163 (2"4

Cir. 2000); Alexander v. Riga, 208 F.3d 419 (3'4 2000); Defender

Industries, Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502 (4* Cir.

1991); Black uv. Fidelity & Guaranty Ins. Underwriters, Inc., 582 F.2d 984

(5 1978); Whits v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789

(6 Cir. 2004); Jannotta v. Subway Sandwich Shons, Inc., 125 F.3d 503

(7** Cir. 1997); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061 (8""

Cir. 1988); White v. Ford Motor Co., 312 F.3d 998 (9'» Cir. 2002);

E.E.0.C. v. Heartway Corp., 466 F.3d 1156 (10" Cir. 2006); and Straw v.

Chase Revel, Inc., 813 F.2d 356 (11" Cir. 1987).

12

“A petition for writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of

law.” Sup. Ct. R. 10. Much of the Petitioner’s argument

stems from its inaccurate statement that Petitioner's

dissimilar acts, separate from the acts on which liability

was premised, served as the basis for the jury’s award of

punitive damages. In following Campbell, supra., the trial

court properly considered the evidence to determine if

the evidence was of conduct “substantially similar” to the

conduct of the Petitioner which gave rise to the subject

lawsuit. (Tr. P. 2027, lines 20-24). The trial judge made

fact specific findings that the evidence Respondent

introduced was not dissimilar or unrelated to the conduct

which resulted in harm to Mr. Williams. The trial judge

also specifically charged the jury that the evidence was

introduced for the limited purpose of establishing notice

and should be viewed only in that regard. (Tr. 1487, line

25- p. 1488, line 8; r. p. 1494, lines 10-24; Tr. p. 2084, line

14- p. 2085, line 8; Tr. p. 2036, lines 7-17; Tr. p. 3530, lines

1-21). Any error asserted by the Petitioner on this issue

could only be an erroneous factual finding or the

misapplication of Campbell, a properly stated rule of law.

Therefore, the Petition for Writ of Certiorari is not

consistent with Supreme Court Rule 10 and should be

denied.

VI. THE TRIAL COURT DID NOT ADMIT

EVIDENCE IN VIOLATION OF CAMPBELL OR

PHILIP MORRIS.

The Petitioner incorrectly argues that the trial

court improperly admitted evidence of dissimilar,

unrelated conduct that served as a basis for the jury’s

award of punitive damages in violation of Campbell,

13

supra. “ A defendant's dissimilar acts, independent from

acts on which liability was premised, may not serve as a

basis for punitive damages.” Id. at 422. “The

Constitution’s Due Process Clause forbids a State to use a

punitive damages award to punish a defendant for injury

that it inflicts upon nonparties...” Philip Morris, supra.

The trial court did not admit evidence of |

dissimilar, unrelated conduct. Petitioner owns, maintains

and operates a continuous railroad track through twenty

three states, including South Carolina. At trial, the

Respondent presented a portion of the Federal Railroad

Administration’s Safety Assurance and Compliance

Program Report froma safety assurance and compliance

audit performed by the FRA in February of 1998. The

report discusses Petitioner’s ongoing problem with

excessive vegetation on its rights-of-way. (Tr. P. 2031,

line 17- p. 2032, line 10). The FRA audit discusses

Petitioner's vegetation control problems across

Petitioner's “system on several operating divisions” and

concludes that Petitioner did not have a sufficient

vegetation control program in place to properly address

its problems with excessive vegetation. (Tr. P. 2032, Line

23-2 p.2033, line 2). The Respondent also presented

evidence that Petitioner received this report and

acknowledged that it lacked a proper vegetation control

program. The Petitioner's failure to properly maintain

vegetation on its right-of-way resulted in Mr. Williams’

death.

The trial court admitted a report of DeAngelo

Brothers, a contracting company, which identified several

problems Petitioner was experiencing with vegetation

control at its railroad grade crossings and the sight

obstructions to motorists caused by the vegetation. The

14

trial court likewise admitted a letter from Union Pacific

Railroad to Petitioner wherein Union Pacific discussed

the problems it incurred with controlling vegetation at

railroad crossings and how the vegetation obstructed

motorists’ sight distance and caused collisions. Union

Pacific described the vegetation control program it had

implemented and the effectiveness of the program. Even

though it had notice of the need for a program to

effectively control vegetation on its crossings which

obstructed the sight distance of motorists, the Petitioner

failed to take measures to effectively control the

vegetation at its crossings. Evidence was also admitted ~

of fines imposed by the South Carolina Department of |

Transportation for Petitioner's failure to control excessive

vegetation which created sight distance obstructions at its

railroad crossings throughout South Carolina. The trial

court also allowed testimony regarding two collisions at

two of Petitioner’s other railroad crossings in South

Carolina which occurred prior to the subject collision.

The trial court found that both of these collisions were

substantially similar because of the existence of sight

distance obstructions due to excessive vegetation on

Petitioner’s right-of-way.

None of this evidence involves dissimilar,

unrelated acts. The evidence all stems from one issue,

failure to maintain sight obstructing vegetation. The

Respondent alleged, and proved, Mr. Williams was not

able to see the ballast regulator which struck his vehicle

because of the excessive vegetation at the subject

crossing. Petitioner’s failure to control its vegetation,

among other acts of negligence, caused Petitioner’s death.

Because all of the contested evidence related directly to

sight distance obstructing vegetation and Petitioner’s

failure to control vegetation, it is not dissimilar.

15

The admission of this evidence is consistent with

Campbell. “Evidence of other acts need not be identical to

have relevance in the calculation of punitive damages...”

Campbell at 423. In Campbell, the Court held “because the

Campbells have shown no conduct by State Farm similar

to that which harmed them, the conduct that harmed

them is the only conduct relevant to the reprehensibility

analysis.” Id. at 424. Unlike Campbell, here the

Respondent introduced evidence that the Petitioner’s

system wide practice of ignoring appropriate vegetation

control caused Mr. Williams’ death. The Respondent

showed evidence of similar crossings in South Carolina

with obstructed sight distance and two similar collisions

in South Carolina which were caused by obstructed sight

distance. The evidence of Petitioner’s conduct on those

occasions is extremely similar, if not identical, to the

conduct that harmed Mr. Williams. Therefore, the

evidence is relevant to the reprehensibility analysis.

Further, “[lJawful out-of-state conduct may be

probative when it demonstrates the deliberateness and

culpability of the defendant's action in the State where it

is tortious, but that conduct must have a nexus to the

specific harm suffered by the plaintiff.” Campbell at 422.

The FRA re, ort and the DeAngelo Brothers proposal

both cite Petitioner’s ongoing problems with excessive

vegetation and Petitioner’s need to adopt a vegetation

control plan. While these documents include problems

with vegetation in other states, they both include

Petitioner's rights-of-way in South Carolina and the

crossing in question. This evidence shows that

vegetation control was considered by Petitioner as a

system wide program. This system wide problem

included South Carolina.

16

In admitting the FRA report, the trial court

properly applied Campbell. The trial judge found that the

FRA report contained evidence of vegetation control in

other states, but that it included South Carolina. The trial

court found it was relevant to the issue of Petitioner's

notice of its need for a vegetation control program, and

admitted the report for this limited purpose. Petitioner's

failure to implement a proper vegetation program has a

nexus to the harm caused to Mr. Williams as Mr.

Williams was killed because his sight distance was

obstructed due to excessive vegetation. The Petitioner's

failure to implement a vegetation control program, when

it had knowledge of excessive vegetation on its rights-of-

way and at the crossing in question, demonstrates the

deliberateness and culpability of Petitioner's conduct and

was properly admitted.

Vil. THE SUPREME COURT OF SOUTH

CAROLINA’S DECISION AND_ THE

UNDERLYING TRIAL PROVIDED

ADEQUATE PROCEDURAL SAFEGUARDS

WHICH ARE CONSISTENT WITH PHILIP

MORRIS.

The Petitioner argues that the trial court admitted

“dissimilar evidence relating only to third parties,

without any procedural safeguards,” thereby creating “a

‘perfect storm’ of due process violations under Philip

Morris.” (Petitioner's Brief, p. 12). Petitioner frames its

question as an issue of whether South Carolina failed to

“guard against jury confusion concerning the due process

limitations on punitive damages” under Philip Morns. As

stated above, the trial court specifically found that the

evidence of which the Petitioner complains was not

“dissimilar” or unrelated to the harm in this case.

17

Therefore, the threat of jury confusion addressed in Philip

Morris was not present in this case.

The trial court admitted the DeAngelo Brothers

proposal in evidence with the following limiting

instruction:

[I]t is admitted solely for the purpose of

showing. that [Petitioner] had notice, had

notice of the alleged need to have a

vegetation control plan and for no other

purpose. This evidence is to be considered

by you on that issue. However, on that

issue only. And it is not proof of any

matter, other than that of notice.

(Tr. 1487, 1488). The other evidence Petitioner claims was

dissimilar was admitted subject to the same limiting jury

instruction. (Tr. P. 1494, lines 10-24; Tr. P. 2084, line 14-

p. 2085, line 8; 2036, lines 7-17). The trial judge properly -

instructed the jury that the above described evidence was .

admitted solely to prove the Petitioner had notice of the

“alleged need” of a vegetation control plan and that the

evidence was not to be considered for any other purpose.

Juries are presumed and bound to foilow the law as

instructed to them by the trial judge. State v. Grovenstein,

517 S.E.2d 216 (S.C. 1999).

“Although the states have some flexibility to

determine the kind of procedure they will implement,

federal constitutional law obligates them to provide some

form of protection in appropriate cases.” Philip Morris at

1065. The contested evidence was admissible on the issue

of notice and the Petitioner's due process rights were

protected by the trial judge’s limiting instructions. The

18

evidentiary findings of the trial court and its limiting

instructions, coupled with the Supreme Court of South

Carolina’s conscientious findings on appeal, illustrate the

presence of adequate procedural safeguards which

comport with the Court's decision in Philip Morris.

Furthermore, while the Petitioner complained of

issues concerning the admissibility of evidence to the

Supreme Court of South Carolina, the evidentiary issues

were not raised as issues on appeal as required by the

South Carolina Appellate Court Rules. SCACR, 208.

Because the Petitioner failed to include the trial court's

rulings on the contested evidence as an issue on appeal,

there is no ruling by the Supreme Court of South

Carolina on the substance of any evidentiary issue which

Petitioner now complains will deprive it of due process

on retrial. The Petitioner relies on the blanket conclusion

that “dissimilar” evidence was admitted and will be

presented at retrial, despite the fact that these conclusions

were never properly raised and ruled upon in the

Supreme Court of South Carolina. Essentially, the

Petitioner seeks to create a constitutional issue on issues

_ which were never properly raised or addressed by the

Supreme Court of South Carolina.

Notwithstanding the above, even if the requisite

procedural safeguards were not provided below, on

retrial the trial court is bound to apply the analysis of

Philip Morris as well as all of the Court's holdings in its

long line of punitive damages cases. The Petitioner's

request for the Court to review this case is premature

because under the decision of the Supreme Court of

South Carolina, the new trial must meet all constitutional

requirements.

19

VII. THE SUPREME COURT OF SOUTH

CAROLINA'S DECISION TO ORDER A

RETRIAL LIMITED TO THE ISSUE OF

PUNITIVE DAMAGES IS CONSISTENT WITH

THE CONSTITUTIONAL REQUIREMENTS OF

CAMPBELL AND PHILIP MORRIS.

The Petitioner argues that the trial court's use of a

general verdict form and the Supreme Court of South

Carolina’s affirmation of the jury’s award of actual

damages precludes the Petitioner from determining

which conduct it will have to defend against at the retrial

on punitive damages and therefore Petitioner will be

deprived of its rights of due process. This argument is

without merit.

Contrary to the Petitioner’s assertions, the

Petitioner’s due process rights under Campbell and Philip

Morris were protected during the state court trial and on

appeal. As addressed above, the trial court made specific

findings that the contested evidence was admissible

considering Campbell's “dissimilar conduct” analysis.

These rulings were properly upheld by the Supreme

Court of South Carolina. Proper evidentiary and

procedural safeguards were employed, and the trial court

properly instructed the jury this evidence was only to be

considered on the issue of notice. Notice may properly

be considered in the reprehensibility analysis for punitive

damages. Gore, supra. Finally, at the post-trial stage, the

trial court applied the Court's precedent and conducted a

de novo review of the punitive damages award, and

reduced the award of punitive damages to a one-to-one

ratio which is well within the parameters of the Court's

constitutional limitations on punitive damage awards.

Tear = — —

20

Even though the constitutional safeguards of

Campbell and Philip Morris have been applied in the state

court, Petitioner now attempts to create a constitutional

issue of the trial court’s use of a general verdict form.

During the trial Petitioner proposed a special verdict

form which required the jury to answer, including

subparts, thirty-one (31) specific questions. (Petitioner's

App., 31a-36a). The trial court, in its discretion, declined

to submit this special verdict form to the jury. Petitioner

claims that because of the use of a general verdict form in

the first trial, the jury in the second trial may punish the

Petitioner on a theory of liability different from the

theory of liability on which the jury awarded actual

damages. The Petitioner misstates the constitutional

safeguards which are required. The constitutional

requirement is that the jury may only punish the

Petitioner for the conduct which it determines killed Mr.

Williams. On retrial, the jury will be so instructed, and

the Petitioner’s constitutional due process rights will be

protected.

The retrial of punitive damages will include the

presentation. of all theories of liability previously

presented, and the same evidence which Petitioner

objected to in the first trial will be offered and the trial

court will have to rule on the admissibility of the

evidence. The trial court is bound to ensure that all

procedural safeguards required by the Court are

employed. The Campbell analysis will be applied by the

trial court to all evidence which is offered in evidence,

and the safeguards required by Philip Morris to guard

against jury confusion will be instituted. Petitioner will

have the opportunity to again challenge the admissibility

of evidence it now contends is inadmissible. At the close

of the case, the jury will be charged on the applicable law

21

and will decide whether the conduct of Petitioner

warrants an award of punitive damages. Even if there

were deficiencies in the previous trial with regard to

punitive damages or in the appellate court, these

deficiencies are of no consequence because the Petitioner

will receive a new trial on punitive damages.

The Petitioner seeks to have the Court

dramatically expand the concept of substantive due

process to require state courts to use a special verdict

form in all cases seeking punitive damages which involve

more than one theory of liability. The verdict form used

by state trial courts would become a federally mandated

due process issue. While the Court has explicitly set

forth procedural and substantive requirements in the

field of punitive damages, it has never sought to impose

specific trial procedures, but it has left these types of

decisions to the state courts. Philip Morris at 1065.

Accordingly, the Petition for Certiorari should be denied.

. The decision of whether to submit a general or special

verdict form to the jury has.long been held as a discretionary power

of the trial judge in South Carolina. See, Love v. Oswald, 272 S.C. 347,

251 S.E.2d 766 (1979) (Establishing that this is an issue of discretion).

22

IX. THE SUPREME COURT OF SOUTH

CAROLINA DID NOT APPLY THE TWO ISSUE

RULE IN AFFIRMING THE TRIAL COURT;

AND, EVEN IF THE TWO ISSUE RULE WERE

APPLIED, THE APPLICATION OF THE RULE

DOES NOT PREVENT A DE NOVO REVIEW

OF A PUNITIVE DAMAGES AWARD ON

APPEAL.

Petitioner petitioned the Supreme Court of South

Carolina for rehearing contending that it “incorrectly

applied the two issue rule in a fashion never before

recognized... and ina manner that creates a disincentive

for trial courts to ever grant a party’s request for a special

verdict form.” Petitioner further argued vaguely and

without supporting authorities, that the application of

the two issue rule “unconstitutionally prevents the de

novo review of punitive damages awards.”

The Supreme Court of South Carolina did not

apply the “two issue” rule in affirming the award of

actual damages. Petitioner bases its argument on the

Supreme Court of South Carolina’s recognition that there

were “several other, more thoroughly developed theories

of liability” and that an erroneous jury charge did not —

warrant reversal of the. actual damages award. This

sentence in the Supreme Court of South Carolina’s

opinion did not reflect application of the “two issue”

rule. The Supreme Court of South Carolina found the

erroneous instruction did not harm petitioner and it was

not prejudiced by the erroneous charge on negligence per

se. Under South Carolina law, the issue of whether an

erroneous jury instruction rises to the level of reversible

error is determined by whether the appellant has shown

sufficient prejudice. “[T]he giving of an erroneous

23

instruction is not reversible error, unless the appellant

can show that he was injured or prejudiced thereby.”

Ellison v. Simmons, 238 S.C.-364, 372, 120 S.E.2d 209, 213

(1961). The Supreme Court of South Carolina, in noting

the other theories of liability which were more fully

developed against Petitioner, merely illustrated the lack

of prejudice occasioned by the erroneous charge given to

the jury.4

Even if the Supreme Court of South Carolina used

the “two issue” rule in order to uphold the lower court,

such application does not rise to a constitutional due

process issue that should be decided by the Court.

“Under the ‘two issue’ rule, when the jury returns a

general verdict involving two or more issues and its

verdict is supported by at least one issue, the verdict will

not be reversed on appeal.” Todd v. South Carolina Farm

Bureau Mutual Ins. Co., 287 S.C. 190, 193, 336 S.E.2d 472,

473-74 (1985); Anderson v. South Carolina Department of

Highways and Public Transportation, 322 S.C. 417, 472

S.E.2d 253 (1996). The “two issue” rule is utilized by the

appellate courts of South Carolina as “a procedural tool

for upholding” decisions and upon application of the

rule, South Carolina courts will “find it unnecessary to

address all the grounds appealed where one requires

affirmance.” [d. at 255.

The Petitioner argues without explanation, that a

“de novo review [of punitivedamages] cannot be properly

conducted when the two issue rule, combined with a

ane The lack of prejudice or injury caused by the erroneous jury

instruction is further illustrated by the fact that even without the

negligence per se charge based upon 49 C.F.R. § 214.355, South

Carolina common law principles impose upon Petitioner the duty to

properly supervise and train its employees.

24

refusal to grant a request for a special verdict form,

prevents the appellate court from ascertaining the

underlying basis for punitive damages.” This bald

assertion is completely unsupported .by citation i.

authority and is so conclusory that the Court should nv

consider this contention.» Moreover, even if the

argument is properly before the Court and has not been

waived or abandoned, it strains logic to conclude that a

retrial on punitive damages would not include proper

procedural safeguards. As discussed. above, all

evidentiary issues will be reheard and the jury will be

instructed by the trial judge consistent with the Court's

decisions regarding punitive damages. [If punitive

damages are awarded, the trial court and appellate courts

will then review the amount of the award in accordance

with Campbell, supra, and Cooper Industries, Inc. v.

Leatherman Tool Group, Inc., 532 U.S. 424 (2001).

Further, the Supreme Court of South Carolina’s

decision to affirm the award of actual damages is the

only final decision of the South Carolina Supreme Court.

As stated above, the Supreme Court of South Carolina

found the erroneous charge on negligence per se did not

prejudice the Petitioner because of the other well

developed theories of negligence submitted to the jury.

These other theories of negligence, as well as the finding

that Petitioner was not prejudiced by the erroneous

charge, all involved state law and provided separate,

adequate and independent state grounds for the Supreme

Court of South Carolina’s decision.

s First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513,

514 (1994); Cole v. South Carolina Electric & Gas, Inc., 355 S.C. 183, 584

S.E.2d 405 (2003); Glasscock, Inc. v. United State Fid. & Guar. Co., 348

S.C. 76, 557 S.E.2d 689 (Ct. App. 2001) (stating short, conclusory

arguments unsupported by authority are deemed abandoned).

25

The Supreme Court of South Carolina did not

make any determination of issues of federal law

requiring review by the Court under 28 US.C.A. §

1257(a). Therefore, as the only final judgment of the

Supreme Court of South Carolina is based on adequate

and independent state grounc;, the Petitioner’s Writ of

Certiorari should be denied.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

John E. Parker

Counsel of Record

J. Paul Detrick

Grahame E. Holmes

Peters, Murdaugh, Parker,

Eltzroth & Detrick, P.A.

101 Mulberry Street East

P.O. Box 457

Hampton, SC 29924

(803) 943 2111 (telephone)

(803) 943 3943 (facsimile)

Counsel for Respondent

May 1, 2007