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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2269%3A2. Public record. Not legal advice.