Opposition Brief — DaimlerChrysler Chrysler Corp. v. Flax (No. 08-1010)

Supreme Court brief2009

Ask Donna

What actually matters in this document.

Text

< ut |

/ t sas ~

(Pr FILED

No. 08-1010

APR 6 — 7009

. OFFICE OF THE CLERK

Bn The SUPREME COURT, U.S.

Supreme Court of the Anited States

DAIMLERCHRYSLER CORPORATION,

Petitioner,

JEREMY FLAX, et al.,

Respondents.

On Petition For A Writ Of Certiorarni

To The Supreme Court Of Tennessee

BRIEF IN OPPOSITION

JAMES &. BUTLER, JR.

Counsel of Record

GEORGE W. FRYHOFER III

LEIGH MARTIN May

ALAN J. HAMILTON

BUTLER, WOOTEN,

& FRYHOFER LLP

2719 Buford Highway

Atianta, GA 30324

(404) 321-1700

GAIL VAUGHN ASHWORTH

GIDEON & WISEMAN PLC

1100 Noel Place

200 Fourth Avenue, North

Nashville, TN 37219

(615) 254-0400

Counsel for Respondents

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

This appeal began with a $105.5 million judg-

ment. Through careful application of this Court’s

precedents, the trial judge and the Tennessee Su-

preme Court reduced that award to $5 million in

compensatory damages for wrongful death (only $2.5

million against Petitioner) and $13 million in puni-

tive damages. In their de novo reviews, the trial court

and the Tennessee Supreme Court held that “clear

and convincing” evidence left “no serious or substan-

tial doubt” Petitioner knew “the danger its seats [in

this family minivan] posed to the public,” and to child

passengers in particular; “conscious|ly] disregard(ed|

... the safety of others”; and “deceitfully covered up

evidence of the deficiencies of its seat design” that

killed Respondents’ 8-month-old child. Pet. App. 25a-

26a, 32a-33a. Such “reckless” and “reprehensible”

misconduct, the Tennessee Supreme Court held,

clearly supported the punitive damages award as

already remitted under this Court’s precedents. /d. at

26a, 31a, 36a.

The Questions Presented, properly related, are

1. Whether Petitioner may claim lack of “fair

notice” of its potential punitive-damage liability

when Petitioner engaged in a “long term pattern” of

“reprehensible” misconduct, including having “know-

ledge of the dangers its seats posed to the public for

years” and “deceitfully coverling] up evidence of the

COUNTERSTATEMENT OF

QUESTIONS PRESENTED - Continued

deficiencies of its seat design while simultaneously

advertising the Caravan as a vehicle that put child-

ren’s safety first.” Id. at 32a-33a.

2. Whether, following faithful and meticulous

application below of this Court’s relevant precedents

and remittance of the award, this Court should

review the constitutionality of an unremarkable

punitive damage award that is both reasonable and

proportionate to the fatal injuries sustained by an 8-

month-old child, where the asserted errors consist of

no more than insubstantial claims of erroneous

factual findings or of misapplication of a properly

stated rule of law.

3. Whether this Court should assert jurisdic-

tion, even .or purposes of a now-mooted GVR request,

to force the court below to “reconsider” a question

when the issue was not “considered” below because

Petitioner waived it under longstanding Tennessee

law.

ill

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS

ois he ssi ven bus teaeveenssinstenvscssesecssssseysenes 1

ERP GPEN ERUEN Le ccc eccsscccerscessescnsvecevenseseeseens ili

TAs eds OF AUTHORITIES ........0ccerssrssesorsssserseooees iv

BRIEF FOR RESPONDENTS IN OPPOSITION . 1

seven csc ssinvesenchgibenaentdensndvaseubies 1

COUNTERSTATEMENT OF THE CASE............. 1

REASONS FOR DENYING THE PETITION ........ 10

I. THERE IS NO DIVISION OF AUTHORI-

TY REGARDING WHETHER THE DUE

PROCESS CLAUSE BARS AN AWARD OF

PUNITIVE DAMAGES WHERE A MAN-

UFACTURER HAS COMPLIED WITH

“MINIMUM” FEDERAL STANDARDG...... 13

Il. THE TENNESSEE SUPREME COURT

FAITHFULLY FOLLOWED THIS

COURT'S PUNITIVE DAMAGE PRECE-

a waltin wadddrocnevedhdexsarssvisvcunenen aves 21

Iii. PETITIONER FAILED TO RAISE THE

INSTRUCTIONAL ISSUE ON APPEAL

AND WAIVED ANY ERROR.............0..0...... 26

ny coy ca ei dyna syésnsnsvsncsvsvereccacesscscuvesess 33

TABLE OF CONTENTS -- Continued

Page

APPENDICES

Appendix A

‘Tenn. Code. Ann. $ 40-35-11 .....ccsccccrcsesvecsecssveceess la

Appendix B

49 C.E-R. § 571.207 Standard No. 207; Seat-

IN ose si cicsiisiaasiny dence See aoe a 2a

Appendix C

ae ee iiss dads ssa tiacnicniaar tooo eeeareeies 13a

Appendix D

Tenn. Code. Ann. § 29-28-1044 ....................0.2cccccees l4a

Appendix E

Bemse. Come. Amit. S BOL BBG osc cicccinccescsceccsssscocscss 15a

Appendix F

Excerpts of Defendant DaimlerChrysler Cor-

poration’s Proposed Jury Instructions on

re I yn isiseneccectarsaciiersavacersasstenans 16a

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Armentrout, 24 S.W.3d 267 (Tenn.

MIE i clesieidi-axica'doncukioaeKindinvesensdin sagen att eaie rmaaraner rian 29

BMW of N. Amer, Inc. v. Gore, 517 U.S. 559

IE iiespicxesuchcnsis sand ccceausaehceethonlarsuensessceemeaaiaiin passim

Brown by Brown v. Stone Mfg. Co., 660

PF. Supp. 464 (3.D. Miles. FOGG). ...02.csccsvsesenncescsecvecss 16

Brown v. Crown Equip. Corp., 181 S.W.3d 268

PR RY cxcoesanscubaseicgeue nia aan 10, 29

Browning-Ferris Indus. v. Kelco Disposal, Inc.,

6 ET I asec unietoatannines 15

Chrysler Corp. v. Wolmer, 499 So.2d 823 (Fla.

Ie itiatys cass nicsanan SUN evin val eeantickonaneeats eam acka nna 18

Collins v. City of Harker Heights, 503 U.S. 115

GIRS (ciiagatnacicassshverceadebuie dntaormarasnmaenaeramnuaaed 12

Cooper Indus. v. Leatherman Tool Group, 532

By Re © Be ca xaia saath vicsessanencaisnsenrexanivaereten o, 13

Day v. Woodworth, 54 U.S. (13 How.) 363

PE ota ocak es sc aabain aaa baaese Sav be sea o ei iades 22

Dorsey v. Honda Motor Co., 655 F.2d 650 (5th

ee EF isto aor Sit cas sa oda cdaueqpaberoakeusnieweaaeaa een rene 16

Duignan v. United States, 274 U.S. 195 (1927)......... 29

Exxon Shipping Co. v. Baker, 128 S. Ct. 2605

+ ERS a siete eA es ee IP ANE PAN CON MC Ftn) IRENE 13

Fischer v. Johns-Manville Corp., 512 A.2d 466

Sp hs SosicxkasaixaeGiratones degaceunnsboncincsetaeieaaineaes ioe 17

TABLE OF AUTHORITIES — Continued

Page

Gen. Motors Corp. v. Moseley, 447 S.E.2d 302

I I I cs crindlicteastuonssnn tabgevieentacserancenes 16

Hodges v. S.C. Toof Co., 833 S.W.2d 896 (Tenn.

I as tibviscsiernnes Riccatiails - dachixevcascasestediedts 5, 23, 31, 32

Matsushita Elec. Indus. v. Epstein, 516 U.S.

is iin edduih sactagacdeekeess S.A e 29

O’Gilvie v. Intl Playtex, Inc., 821 F.2d 1438

(10th Cir. 1987), cert. denied, 486 U.S. 1032

( ees. ss adi lst tins tig lashes svituntevanscoyariia 16

Pac. Mut. Life Ins. Co. v. Haslip, 499 US. 1

ae a a cade in vehnmpnminadh se eneastend 24

Philip Morris USA v. Williams, 549 U.S. 346

I Satin sidaeiscsinkosennieve shea dencitead itrasn ss cubis 27, 28, 30, 31

Philip Morris USA v. Williams, No. 07-1216,

2009 WL 814803 (U.S. Mar. 31, 2009) ............. 27, 28

Richards v. Michelin Tire Corp., 21 F.3d 1048

ase, ous day ods vinnusbt ven tiess 18, 1s

Safeco Ins. Co. v. Burr, 127 8S. Ct. 2201 (2007)....16, 17

Satcher v. Honda Motor Co., 52 °3d 1311 (5th

asa kad shonssnsockenshilins beaveyFibeebeneeene%s 18

Schultz v. Ford Motor Co., 857 N.E.2d 977 (Ind.

th A a ET Sree aeeeaie 14

Silkwood v. Kerr-McGee Corp., 464 Ll 5. 238

SN ie lcd icpdacs ve psuniaiisitedselenscexcinvise Mbntins shins 10, 14

Silkwood v. Kerr-McGee Corp., 769 F.2d 1451

IN a oni oka lansiscenratéededte danytddavenesssivaseersse 14

Vil

TABLE OF AUTHORITIES —- Continued

Page

State Farm Mut. Auto. Ins. Co. v. Campbell,

Se, I CD a vvesccttessicsnvncvecesnsencetucnsveodess passim

Surles ex rel. Johnson v. Greyhound Lines, 474

ee IE RN, PINES ids kcsce tain svnrtibdoxdicsosbosaoxivennts 16

Taylor uv. ‘Freeland & Kronz, 503 U.S. 638

cian kien ti ciilaviveshiddetagasasmiesivucineted Mewssee aed 29

Tetuan v. A.H. Robins Co., 738 P.2d 1210 (Kan.

i SSRI RRR. Ad A On OI DSI 17

Va. & Sw. R.R. v. Sutherland, 197 S.W. 863

Rg y SE LAP OD me Res, SaNneE 10, 29

Williams v. Philip Morris Inc., 340 Or. 35

SING i ices cscn dc svndadiglidinces tanswicesiiieestesimevemersence 28

Youakim v. Miller, 425 U.S. 281 (1976).................... 29

STATUTES

WM vce issssdvcnckisseccdvensnansdecnancuse ne eee 1

i No vinkisitsnncontednccesesensvacvcsiedcsocecreevs 10

Tenn. Code. Ann. § 29-2B-1O4.............cc.cccecovcrecsseseeses. 15

WOT. GOS, Ag. BO Mee Bk Gk. on scceicccccscccccossseccnecsves 23

Tenn. Code. Ann. §$ 40-35-11 1(c)(4)..............ccccocccscsseeess 9

OTHER AUTHORITIES

A. Mitchell Polinsky & Steven Shavell, Punt-

tive Damages: An Economic Analysis, 111

Harv. L. Rev. 869 (1998)

Vill

TABLE OF AUTHORITIES — Continued

Page

Dorsey D. Ellis, Fairness and Efficiency in the

Law of Punitive Damages, 56 S. CAL. L. REv.

Rec BE A dhl ST SLR teats Sa ee 25

RESTATEMENT (THIRD) OF TorRTS: PRODS. LIAB.

hs dada ba veuudanes 14

W. PAGE KEETON, ET AL., PROSSER AND KEATON

ON THE LAW OF TorTs (5th ed. 1984)...................008. 17

WILLIAM LANDES & RICHARD POSNER, THE

ECONOMIC STRUCTURE OF TorRT LAW (1987)............. 25

RULES

I I Os aed eg bap maavekan vasden vhiieds 10, 12

REGULATIONS

Se EC BsMNET tcehnereniscivorsanesesavosesesnss 10, 11, 13, 19

BRIEF FOR RESPONDENTS IN OPPOSITION

Respondents Jeremy Flax and Rachel Sparkman,

as the natural parents of Joshua Flax, deceased

(“Respondents” or “Plaintiffs”), respectfully submit

this brief in opposition to the petition for a writ of

certiorarl.

JURISDICTION

As discussed more fully in the reasons for deny-

ing the writ (see infra pp. 26-30), this Court lacks

jurisdiction under 28 U.S.C. § 1257(a) as to Question

3 because the federal question Petitioner raises was

not presented to the intermediate appellate court,

and the Tennessee Supreme Court, in accordance

with established practice, refused to consider the

issue.

COUNTERSTATEMENT OF THE CASE

The Petition provides a woefully incomplete

account of both the procedural history of this case and

the record evidence. On June 30, 2001, Joshua Flax

was properly positioned and secured in his forward-

facing car seat, directly behind the right front seat of

his grandparents’ 1998 Dodge Grand Caravan, when

the Caravan was rear-ended by defendant Louis

Stockell’s pick-up truck. Pet. App. 4a-5a. The collision

was not severe enough to cause significant injury to

any of the five other occupants of the minivan or the

driver of the pickup truck. Jd. It was sufficient, how-

ever, to cause the defective right front seat to collapse

rearward, causing the head of its belted occupant to

strike Joshua’s forehead. Jd. at 5a. The impact frac-

tured Joshua’s skull, producing a “hole in his fore-

head approximately the size of a golf ball and

probably a half inch deep.” Jd. He suffered severe

brain damage and died the following day. /d.

Both sides acknowledged that “Joshua Flax

would not have been seriously injured if the seat in

front of him had not yielded rearward.” Jd. Joshua’s

mother, Rachel Sparkman, seated in the back seat

with Joshua, was the first to see his “smashed in”

forehead. Id.

1. On May 7, 2002, Jeremy Flax and Rachel

Sparkman filed this lawsuit against Louis Stockell,

the driver of the pick-up that rear-ended the minivan,

and Petitioner, the manufacturer of the minivan. /d.

at 5a-6a. The complaint alleged, inter alia, that the

minivan’s seats were weak, defective, and unreasona-

bly dangerous and that Petitioner failed to warn

consumers that the seats posed a danger to children

seated behind them. 7d. at 6a. Plaintiffs jointly

sought recovery for Joshua’s wrongful death, and

plaintiff Rachel Sparkman, individually, sought

recovery on her negligent infliction of emotional

distress (“NIED”) claim for what she experienced

from observing the injuries to her 8-month-old son.

Id. Plaintiffs allegec that Petitioner acted “recklessly”

and sought punitive damages on both claims. /d.

During the lengthy first phase of the trial, Plain-

tiffs put on evidence that included internal memo-

randa of Petitioner and the testimony of its own

employees, which demonstrated two decades of con-

scious indifference to the very dangers of Petitioner’s

collapsing minivan seat backs revealed in this inci-

dent. Jd. at 20a-28a, 32a. As early as 1980, meeting

minutes revealed that seat backs had yielded “in

every crash test” but that any improvements were

resisted because they would entail additional “‘devel-

opment costs’” and a “‘piece penalty.’” Jd. at 20a.

Petitioner’s own crash test videos “confirm that in

rear-impact collisions the seats yielded into the

occupant space behind them.” /d. Petitioner’s internal

memoranda showed that the seats were so weak that,

in rear crash tests, “the front seats were braced to

prevent the seatbacks from impacting [testing]

equipment occupying the back seat” where a child

would be sitting. Jd. at 21a. During the “mid-1980s,”

Petitioner also “began to receive reports of children

injured by yielding seatbacks in rear-end collisions,”

including “skull or facial fractures.” Jd. at 21a.

Alarmed by this knowledge, in the early 1990s,

Petitioner formed the Minivan Safety Leadership

Team (““MSLT”), chaired by Paul Sheridan, an em-

ployee of Petitioner. Jd. The MSLT sought “to address

safety concerns in [Petitioner’s] minivans,” including

specifically “the issue of seat back strength.” Jd. The

MSLT studied “complaints regarding injuries caused

by yielding seat backs.” Jd. At its March 16, 1993,

mecting, the MSLT “reached a consensus that it was

unacceptable for seats to yieid rearward into the

passenger space behind them and that the seats were

inadequate to protect customers.” Id. at 21a-22a

(emphasis added). “After the meeting, Mr. Sheridan

distributed the minutes of the meeting to various

[Petitioner] executives.” Jd. at 22a. Later, Francois

Castaing, a Petitioner executive in charge of engi-

neering, ordered Sheridan to “retrieve the minutes of

the meeting and destroy them.” Jd. Mr. Sheridan

complied with that direction but retained two copies

in his office. /d.

“In September 1994, Mr. Sheridan told his super.

visor that he was going to go to regulators with his

concerns about the minivan seatbacks.” /d. Petition-

er’s response was to “disband” the MSLT, “fire” Mr.

Sheridan, and “confiscate” the MSLT minutes from

Mr. Sheridan’s office. Jd. at 22a-23a. As the Tennessee

Supreme Court held, Petitioner’s “efforts to destroy

the recommendations produced by the MSLT are a

further indication of [Petitioner's] awareness of the

seatback problem and its determination to hide the

problem rether than solve it.” Jd. at 23a. In spite of

this knowledge, Petitioner “did not issue any warning

to customers and continued to advertise the Caravan

as a vehicle specifically designed to protect children.”

Id. at 21a.

The jury concluded that the seats were “defective

and unreasonably dangerous” and that Petitioner “had

consciously disregarded a known, substantial, and

unjustifiable risk to [Respondents|” in designing these

seats. [d. at 25a. The jury awarded compensatory

damages for the wrongful death of Joshua Flax in the

amount of $5 million, apportioned evenly between

Petitioner and Stockwell. The jury also awarded $2.5

million to Ms. Sparkman for her NIED claim. /d. at

7a.

Phase II of the jury trial was devoted solely to

the amount of punitive damages, after the jury had

determined by clear and convincing evidence in Phase

I that Petitioner had acted “recklessly” and that its

misconduct warranted punitive damages. Jd. at 6a-

7a. In Phase II, the jury awarded a total of $98 mil-

lion in punitive damages, divided as $65.5 million for

the wrongful death claim and $32.5 million for the

NIED claim. Id.

In the months following the verdict, the trial

judge conducted a de novo review of the punitive

damages award as required by Hodges v. S.C. Toof

Co., 833 S.W.2d 896, 902 (Tenn. 1992), and Cooper

Industries v. Leatherman Tool Group, 532 U.S. 424,

436 (2001). Pet. App. 7a, 165a-76a (trial court find-

ings of fact and conclusions of law). In an extensive

post-trial order, the trial judge concluded that the

jury “properly found” that Petitioner “acted recklessly

and that punitive damages were warranted.” /d.

In those independent findings of fact and conclu-

sions of law, the trial judge further found Petitioner

“had the weakest seat design strength requirement of

all the other manufacturers,” as shown by Petitioner's

own documents, /d. at 167a; the “front seat collapsed

backward into the back area where a child would be

sitting” in “all of the [Petitioner’s] ... rear impact

crash tests,” 1d.; Petitioner “had knowledge that these

seats were unreasonably dangerous” and knew the

““child could be impacted by that seat,’” id. at 167a-

68a; “(t]he motivation for [Petitioner’s] conduct was to

avoid spending the extra money to fix the problem of

a weak seat back design,” id. at 172a; Petitioner’s

“reckless conduct, concealment of its knowledge, and

failure to warn resulted in the injury and death of

plaintiffs’ only child,” zd. at 17la; and Petitioner’s

“reprehensible conduct of concealing and not warning

customers of the known dangers of putting children

behind yielding seats supports a substantial jury

award.” Jd. at 171a-72a.

Then, after applying this Court’s jurisprudence

from BMW of North America, Inc. v. Gore, 517 U.S.

559 (1996), and State Farm Mutual Automobile

Insurance Co. v. Campbell, 538 U.S. 408 (2003), the

trial court determined that the punitive damages

exceeded proper proportionality and ordered the

award remitted from $98 million to $20 million. Pet.

App. 7a, 175a-76a. That remittitur resulted in a final

award of $13,367,345 in punitive damages against

Petitioner on the wrongful death claim and

$6,632,655 in punitive damages on Ms. Sparkman’s

NIED claim. 7d. at 7a.

2. On appeal to the Tennessee Court of Appeals,

Petitioner challenged the awards of compensatory

and punitive damages, but elected not to raise any

issue regarding the jury charges governing liability

for, or the amount of, punitive damages. /d. at 7a-8a,

36a-37a. The court of appeals determined that Ms.

Sparkman’s individual NIED claim failed to meet the

heightened proof requirements for such claims under

Tennessee law and vacated the award of both com-

pensatory and punitive damages to Ms. Sparkman

individually on the NIED claim. Jd. at 7a-8a. The

court of appeals also held the evidence was insuffi-

cient to establish by clear and convincing evidence

that Petitioner acted recklessly. Jd. at 8a. Accordingly,

the court of appeals vacated the remaining award of

punitive damages on the wrongful death claim as

well. Jd. The court of appeals affirmed the award of

$5 million in compensatory damages on the wrongful

death claim (only $2.5 million of which was allocated

against Petitioner). Id.

3. Respondents filed a discretionary application

for appeal to the Supreme Court of Tennessee, which

was granted. Jd. Respondents challenged the court of

appeals’ vacation of the NIED award to Ms. Spark-

man and both punitive awards. Jd. The supreme

court affirmed the ruling vacating the NIED damages

(and the award of punitive damages appended to that

claim). /d. at 16a.

However, after de novo review of a trial record

“consisting of thousands of pages of pleadings, testi-

mony, and exhibits,” id. at 73a (Wade, J., concurring),

the supreme court reversed the court of appeals

ruling as to the sufficiency of the evidence of reck-

lessness and reinstated the $13,367,345 in punitive

damages on the wrongful death claim. /d. at 25a, 36a,

45a-46a. The Tennessee Supreme Court's exhaustive

review of the “wealth of evidence,” id. at 44a, support-

ing Respondents’ punitive damages claims sustained

the conclusion that the “jury’s finding of recklessness”

was “supported by clear and convincing material

evidence” and “that there is no serious or substantial

doubt that [Petitioner] consciously disregarded a

known, substantial, and unjustifiable msk to the

plaintiffs.” Jd. at 25a-26a.

The evidence demonstrated that Petitioner

“deceitfully covered up evidence of the deficiencies of

its seat design” while advertising to the public the

vehicle’s safety for children. Jd. at 32a. Moreover, the

evidence showed that Petitioner’s “wrongdoing was

not an isolated incident because [Petitioner] had

knowledge of the danger its seats posed to the public

for years and yet continued to sell its vehicles in an

unreasonably dangerous condition throughout the

State of Tennessee.” Jd. The supreme court further

concluded that Petitioner’s conduct was “clearly ...

reprehensible” and “evince[d] a conscious disregard

for the safety of others.” Jd. at 3la-32a.

Applying this Court’s directives in BMW and

State Farm, the supreme court concluded that Peti-

tioner had “fair not*ce” its reckless conduct could

“subject it to a severe penalty.” /d. at 32a; see also id.

at 28a-35a & 35a n.8. Analyzing the evidence under

the aggravating factors regime articulated in State

Farm, the court found this case to involve “a tragic

experience that is far more serious than a mere

economic loss ... a conscious disregard for the safety

of others ... deceit{ | ... land] not an _ isolated

incident.” Jd. 3la-32a. Thus, the misconduct was

“clearly ... reprehensible.” Jd. at 31a.

The supreme court then approved a ratio of 1 to

5.35 between the $2.5 million in compensatory dam-

ages for which Petitioner was liable based on the

jury’s 50% allocation of fault to it for wrongful death

and the $13,367,345 in punitive damages upheld on

that claim. Id. at 32a-36a.' Finally, the court consi-

dered the comparability guidepost, finding no close

analogy but using Tenn. Code. Ann. § 40-35-111(c)(4)

(2006) as the statute that “most close:y expresses” a

point of comparison. Pet. App. 33a. The court none-

theless concluded that the other guideposts bear

“considerably more weight” and that the fine autho-

rized by statute would be inadequate to punish and

deter Petitioner. /d. at 36a. On this record, therefore,

the Tennessee Supreme Court com’ med the award

fell within the constitutionally peri. ssible spectrum

of valid awards. /d.

‘ If one compares the total actual harm indisputably caused

by the failure of Petitioner’s defective product (tota] $5 million

wrongful death award) to the punitive damages awarded against

Petitioner ($13 million), the real ratio is less than 3 to 1. The

ratio is even lower when one considers the potential harm,

which would include the obvious emotional distress of a mother

seeing her only child’s head crushed as well as the impact of the

event on the other passengers. See State Farm, 538 U.S. at 418

(stating the guidepost censiders “the disparity between the

actual or potential harm suffered by the plaintiff and the

punitive damages award.”) (emphasis added).

In addition, the court declined to consider wheth-

er a requested jury instruction constituted error

becaus® Petitioner had not raised the issue before the

court of appeals. Following longstanding state prac-

tice, the supreme court stated that “[llitigants who

hope to have an issue heard by this Court must first

present that issue to the intermediate appellate

court.” Id. at 36a-37a (citing Brown v. Crown Equip.

Corp., 181 S.W.3d 268, 281 n.5 (Tenn. 2005); Va. &

Sw. R.R. v. Sutherland, 197 S.W. 863, 864 (Tenn.

1917)).

REASONS FOR DENYING THE PETITION

The Petition does not meet any established

criteria warranting certiorari. See Sup. Ct. R. 10.

There ts no need to “clarify” (Pet. 9) whether the Due

Process Clause’s substantive protections against

“excessive” or “unreasonable” awards of punitive

damages create an absolute bar to the imposition of

punitive damages in a products liability action in

which a manufacturer has complied with “minimum”

federal regulatory standards that lack preemptive

effect.’ This Court’s decision in Silkwood v.

~ Since 1974, Federal Motor Vehicle Safety Standard

(“FMVSS”) 207, 49 C.F.R. § 571.207, has set the bare “minimum”

seatback strength that every vehicle manufactured or iniported

into the U.S. must have just to de sold in this country. See 49

U.S.C. § 30102(a9) (2009) (FMVSS are “minimum” standards)

It requires every seat sold to have at least a “minimum”

(Continued on following page)

Kerr-McGee Corp., 464 U.S. 238 (1984), forecloses

that view, and to date no lower court has adopted

Petitioner’s sweeping view of Due Process. Moreover,

states, including Tennessee, have long exercised their

sovereign authority in deciding what particular value

to accord a manufacturer’s compliance with federal

safety standards in products liability actions — with

Tennessee and the majority of states deciding that

compliance establishes, at most, a rebuttable pre-

sumption that a product is not unreasonably danger-

ous. States have exercised that authority without any

intimation from this Court that the Due Process

guarantee of “fair notice” requires them to accord

such compliance an irrebuttable presumption that a

design is not defective even where, as here, a manu-

facturer has actual knowledge that its design is

defective, engages in a cover-up of that knowledge,

and consciously disregards the risks asscciated with

that design. Petitioner’s attempt to locate such a rule

within the Due Process Clause is a fanciful exercise

strength when statically pulled with 20 times the weight of the

seat back (or approximately 300 lbs. of force) applied to the mid

part of the seat back in a laboratory (which equates to 3,300

inch-pounds of torque). 49 C.F.R. § 571.207. FMVSS 207 does not

test the performance of a seat in a rear crash and sets no

“performance guideline” at all for a seat in a rear or any other

kind of crash. Jd. Similarly, FMVSS 207 did not “set” the

“optimum” strength of a seat or “prescribe” any “set” strength

other than requiring that all seats exceed a bare “minimum” or

“floor.” See id. In fact, Petitioner’s lead seat engineer testified

that FMVSS 207 “requires ‘inadequate seat strength to insure

that the seat does not fail’” in rear impacts. Pet. App. 24a.

that does not merit this Court’s serious engagement.

Cf. Collins v. City of Harker Heights, 503 U.S. 115,

125 (1992) (noting that this Court should be “reluc-

tant to expand the concept of substantive due process

because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended.”).

Nor is certiorari warranted to consider whether

the evidence in this case supports the award of puni-

tive damages, or whether the Tennessee Supreme

Court misapplied this Court’s well-established crite-

ria for determining whether an award is constitu-

tionally excessive. The Tennessee Supreme Court

faithfully and meticulously applied this Court’s

precedents to the egregious facts disclosed by tims

record. Each of the three considerations, articulated

by this Court in BMW and explained in its progeny,

factored into the court’s Due Process analysis. The

weight the court attributed to these considerations is

entirely consistent with this Court’s precedents,

which mark the reprehensibility factor as the “most

important indicium of reasonableness of a punitive

damages award.” BMW, 517 U.S. at 575. Thus, re-

view of the Tennessee Supreme Court's application of

a properly stated rule of law does not warrant certi-

orari. See Sup. Ct. R. 10 (“certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated

rule of law.”).

Finally, certiorari is inappropriate to consider

whether the trial court’s failure to give a requested

jury instruction on harm to non-parties violates

Petitioner’s Due Process rights. Petitioner assigned

no error to this issue in its first appeal, thereby

waiving the issue for all subsequent appeals under

adequate and independent state procedure.

I. THERE IS NO DIVISION OF AUTHORITY

REGARDING WHETHER THE DUE

PROCESS CLAUSE BARS AN AWARD OF

PUNITIVE DAMAGES WHERE A MANU-

FACTURER HAS COMPLIED WITH “MIN-

IMUM” FEDERAL STANDARDS

The Due Process Clause imposes substantive

limits on the broad discretion that States possess

with respect to the imposition of punitive damages.

Cooper Indus., 532 U.S. at 433. These substantive

limits, however, have never been understood to create

an absolute bar to the imposition of punitive damages

in a products hiability action in which a manufacturer

has complied with “minimum” federal regulatory

standards that nonetheless lack preemptive effect.

And no court has subscribed to this suspect view of

the Due Process Clause, which Petitioner here ad-

vances. (See Pet. 13).

' Petitioner does not argue that FMVSS 207, which ad-

dresses seatback strength, preempts Respondents’ suit for

compensatory damages. Nor does it contend that FMVSS 207

somehow preempts punitive damages, but not compensatory

damages. Cf. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2609

(2008).

In fact, Petitioner’s theory that “compliance with

objective indicators of reasonable conduct, such as

industry custom and federal standards ... precludes

punitive damages” as a matter of federal Due Process

(Pet. 12) directly conflicts with this Court’s decision in

Silkwood, 464 U.S. 238. There, the Court held that a

federal statute did not preclude an Oklahoma court

from awarding punitive damages in a case in which

the alleged tortfeasors had substantially complied

with a federal regulatory scheme. Jd. at 258. This

Court then remanded the case to the Tenth Circuit for

consideration of any remaining issues, which in-

cluded whether substantial compliance with a regula-

tory scheme bars the award of punitive damages as a

matter of Oklahoma law, and whether “the amount of

the punitive damages award was excessive.” Id.; see

also Silkwood v. Kerr-McGee Corp., 769 F.2d 1451,

1457 (10th Cir. 1985) (deciding, on remand, that

Oklahoma law does not categorically bar punitive

damages based on substantial compliance). This

Court’s Silkwood decision would make no sense were

compliance with a regulatory scheme itself dispositive

of the Due Process inquiry.

States undoubtedly have the authority to deter-

mine what value to accord a manufacturer’s com-

pliance with “minimum” federal regulations in

products liability actions. See RESTATEMENT (THIRD)

OF Torrs: Pkops. LiAB. § 4 (1998); see also, e.g.,

Schultz v. Ford Motor Co., 857 N.E.2d 977, 988 (Ind.

2006) (recognizing state authority “to place some

particular value upon compliance with federal safety

standards”). Indeed, this Court has repeatedly recog-

nized that “where state law provides the basis of

decision, the propriety of an award of punitive dam-

ages for the conduct in question, and the factors the

jury may consider in determining their amount, are

questions of state law.” Browning-Ferris Indus. v.

Kelco Disposal, Inc., 492 U.S. 257, 278 (1989). After

all, a constitutionally valid award is one “supported

by the State’s interest in protecting its own consum-

ers and its own economy.” BMW, 517 U.S. at 572.

Tennessee’s approach cloaks a manufacturer

whose conduct complies with federal regulations with

a rebuttable presumption that its product is not

unreasonably dangerous. See Tenn. Code. Ann. § 29-

28-104. A plaintiff may overcome this presumption

through clear and convincing evidence that the de-

fendant has actual knowledge of the defect and

deliberately disregards the foreseeable consequences

resulting from the defect. Pet. App. 27a (explaining

that § 29-28-104 “was not designed to provide immun-

ity from punitive damages to a manufacturer who is

aware that compliance with a regulation is insuffi-

cient to protect users of the product.... To hold

otherwise would create an inflexible rule that would

allow some manufacturers knowingly engaged in

reprehensible conduct to escape the imposition of

punitive damages.”).

This framework tracks the laws of several

states: compliance with federal regulations or indus-

try custom is strong evidence that a manufacturer is

not reckless, but actual knowledge of a defect may

establish reckless conduct warranting punitive dam-

ages. See, e.g., O’Gilvie v. Int'l Playtex, Inc., 821 F.2d

1438, 1446 (10th Cir. 1987), cert. denied, 486 U.S.

1032 (1988) (Kansas law) (“[Clompliance with the

FDA regulations does not preclude punitive damages

when there is evidence sufficient to support a finding

of reckless indifference to consumer safety.”); Dorsey

v. Honda Motor Ce., 655 F.2d 65), 657 (5th Cir. 1981)

(Florida law) (“[Clompliance with [federal Motor

Vehicle Safety Act Standards}, which were far from

comprehensive, [did not] preclude[] any finding of

recklessness no matter how egregious Honda’s con-

duct had been in ignoring tests that indicated design

flaws of a different nature.”); Brown by Brown uv.

Stone Mfg. Co., 660 F. Supp. 454 (S.D. Miss. 1986)

(Mississippi law) (compliance with federal flammabil-

ity standards not conclusive on issue of whether

fabric was unreasonably dangerous); Gen. Motors

Corp. v. Moseley, 447 S.E.2d 302, 311 (Ga. Ct. App.

1994) (rejecting argument that compliance with

FMVSS 301 “precludes an award of punitive damages

where ... there is other evidence showing culpable

behavior”); cf. Surles ex rel. Johnson v. Greyhound

Lines, 474 F.3d 288, 300-01 (6th Cir. 2007) (applying

Tennessee law and concluding that compliance with

federal regulations and common industry practices is

evidence of the standard of care but does not conclu-

sively establish the standard of care in negligence

CaSeS).

‘ Petitioner's reliance on Safeco Ins. Co. v. Burr, 127 S. Ct

2201 (2007), is misplaced. That case does not stand for the

(Continued on following page)

When punitive damages are imposed, states like

Tennessee require actual knowledge of the harmful

effect or a conscious disregard of it. Cases that reflect

compliance with a statutory scheme, without more,

will not entitle the plaintiff to recover punitive dam-

ages. See W. PAGE KEETON, ET AL., PROSSER AND KEa-

TON ON THE Law OF TortTs § 36, at 233 n.41 (5th ed.

1984). The reason is »bvious: actual knowledge or

conscious disregard is difficult to establish but clearly

can be proven in the appropriate case. See, e.g.,

Tetuan v. A.H. Robins Co., 738 P.2d 1210, 1240 (Kan.

1987) (“Far from simply being ‘grossly negligent’ in

marketing the Dalkon Shield, there was substantial

evidence to conclude that Robins deliberately, inten-

tionally, and actively concealed the dangers of the

Shield for year after year”); Fischer v. Johns-Manville

Corp., 512 A.2d 466, 481 (N.J. 1986) (“[Tlhe evidence

supports a finding that Johns-Manville knew of the

dangers created by its product. Not only did it fail to

warn users of the serious health hazards associated

with exposure to asbestos, it actually took affirmative

proposition that compliance with government regulations

precludes a finding of recklessness because compliance estab-

lishes a “reasonable debate” whether a design is tn fact defective

‘Pet. 11). Safeco does not speak at all to this issue. See 127 S. Ct.

at 2216. Nor is Safeco’s definition of common-law recklessness

different from the recklessness standard applied in this case

Compare td. at 2215 (“recklessness” equals “action entailing ‘an

unjustifiably high risk of harm that is either known or so

obvious that it should be known'”), with Pet. App. 17a (“reck-

lessness” as “consciously disregardling] a substantial and

unjustifiable risk”)

steps to conceal this information from the public”).

And where, as here, there is no serious or substantial

doubt that the manufacturer had actual knowledge of

a defect, deliberately disregarded the foreseeable

consequences resulting from the defect, and deceitful-

ly covered up evidence of these deficiencies (see Pet.

App. 3la-32a), the manufacturer’s claim that it did

not have fair notice that its conduct could give rise to

punitive damages liability cannot be taken seriously.

The cases Petitioner cites do not help its cause.’

Petitioner’s reliance on Richards v. Michelin Tire

Corp., 21 F.3d 1048 (llth Cir. 1994), is particularly

revealing. Petitioner flatly misrepresents the holding

of Richards by stating judgment was granted to

defendant on punitive damages where “‘the record

demonstrates that [the manufacturer] complied with

all requisite Federal Motor Vehicle Safety Stan-

dards.’” Pet. 12-13 n.2. In reality, the Richards case:

’ At most, compliance with applicable safety standards was

rejecting a punitive damages claim that was otherwise deficient.

See Satcher v. Honda Motor Co., 52 F.3d 1311, 1317 (5th Cir.

1994) (vacating punitive award in light of evidence that “leg

guards” on motorcycle were unanimously rejected by industry,

scientific community, independent testing and _ professional

organizations, and were unsupported by defendant's testing);

Chrysler Corp. v. Wolmer, 499 So.2d 823, 826 (Fla. 1986) (vacat-

ing punitive award because Chrysler's “test reports” did not

support “district court’s determination that Chrysler had actual

knowledge” that its vehicle was unreasonably dangerous or that

it acted with a “wanton disregard for life,” but court did not even

reach the punitive damayes preemption argument)

(1) stated only that “compliance with both federal

regulations and industry practices is some evidence of

due care,” 21 F.3d at 1059 (emphasis added); (2) held

only that JNOV was appropriate because the plaintiff

“failed to demonstrate sufficient evidence on his

wanton design claim,” id.; but (3) explicitly rejected

the manufacturer’s “invitation to hold” that com-

pliance with a federal safety regulation “precludes a

finding of wantonness.” /d. at n.21.

As the Tennessee Supreme Court held, Petition-

er’s argument that meeting “minimum” standards

should immunize a manufacturer from punitive

damages would “provide immunity from punitive

damages to a manufacturer who is aware that com-

pliance with a regulation is insufficient to protect

users of the product.” Pet. App. 27a (emphasis added);

see also id. at 28a (punitive damages should not be

barred when “a manufacturer knows that a... prac-

tice ... presents a substantial and unjustifiable risk

to consumers.”) (emphasis added)."

This record revealed that Petitioner had the

“weakest seat design strength” of all manufacturers

* Petitioner's own engineers and expert witnesses admitted

FMVSS 207’s “minimum” strength level was “inadequate” and

“insufficient.” Pet. App. 24a (“seat engineer employed by [Peti-

tioner] testified that FMVSS 207 requires ‘inadequate seat

strength’”; “[Minivan Safety Leadership Team] agreed that

compliance with FMVSS 207 was insufficient to ensure safety of

consumers’; “both of [Petitioner's] experts on seat design agreed

that compliance with FMVSS 207 alone is inadequate to protect

passengers.” ).

to which Petitioner compared itself; Petitioner’s

family minivan front seats collapsed into the back

seat where a child would be sitting in every rear crash

test Petitioner ran on a minivan for 20 years; Peti-

tioner even had to brace the front seats in the tests to

keep the seats and the dummies in them from col-

lapsing upon and damaging the testing equipment

located exactly where a child would be seated in the

second row; for 20 years, Petitioner received com-

plaints of children and adults being injured and killed

by collapsing minivan seats; Petitioner’s own Minivan

Safety Leadership Team studied collapsing minivan

seats, determined that the collapsing minivan seat

was “unacceptable,” and concluded that the minivan

seats “were inadequate to protect customers”; Peti-

tioner’s response from the highest levels of the corpo-

ration to the MSLT’s conclusions was to “retrieve and

destroy” the minutes of the MSLT, disband the com-

mittee, and fire its chairman; Petitioner declined to

strengthen the minivan seat because of “cost”; Peti-

tioner “concealed” its knowledge of the risks of death

and serious injury from collapsing minivan seats;

instead of warning, Petitioner encouraged parents to

place their own children directly behind seats Peti-

tioner knew would collapse yet “advertiseld| the

Caravan as a vehicle that put children’s safety first.”

(See supra pp. 3-6).

Any defendant pursuing that course of ongoing,

deliberate misconduct has more than “fair notice” of

the possibility of a substantial punitive damage

award: such an award should be expected. In view of

this record, Petitioner’s “fair notice” claim does not

merit exercise of this Court’s discretion to review the

issue.

Il. THE TENNESSEE SUPREME COURT

FAITHFULLY FOLLOWED THIS COURT’S

PUNITIVE DAMAGE PRECEDENTS

This Court should decline Petitioner’s invitation

to review the Tennessee Supreme Court’s affirmation

of an unremarkable punitive damage award —- one

that is both reasonable and proportionate to the fatal

injuries suffered by a child and the potential injuries

to the child’s mother, who was one of the plaintiffs in

this case. The Tennessee Supreme Court faithfully

and meticulously applied this Court’s teachings on

punitive damages to the egregious facts disclosed by

this record. The court separately considered each of

the three guideposts set forth in BMW, and the

weight attributed to these considerations is entirely

consistent with this Court’s precedents.

Petitioner makes three separate arguments

under the umbrella of a meritless claim that the

punitive damages are excessive. First, it claims the

Tennessee Supreme Court ignored Petitioner’s com-

pliance with “minimum” federal regulatory stan-

dards. Pet. 16. This argument constitutes little more

than a repeat of its first Question Presented in barely

different garb. Moreover, as the decision below de-

monstrates, the supreme court did not ignore but

confronted that compliance. The court found that it

could not excuse Petitioner’s actual knowledge of its

seatbacks’ inadequacy or its cover-up of a defect that

posed a serious danger to its customers’ safety. Pet.

App. 27a.

Second, Petitioner elides its own egregious mis-

conduct and the fact that the “most important indi-

cium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defen-

dant’s conduct.” State Farm, 538 U.S. at 419 (quoting

BMW, 517 U.S. at 575 (emphasis added)). Instead,

Petitioner asserts that the Tennessee Supreme Court

gave short shrift to the third BMW guidepost, compa-

rability, and seeks to establish that guidepost as the

most important guidepost as to the reasonableness of

a punitive damages verdict.

Petitioner’s attempt to elevate the third guide-

post into a conclusive and overriding factor when

compared to the two others is freighted with mischief.

If adopted, it would transform the historically vali-

dated test that requires that punitive damages match

the gravity of the offense, see BMW, 517 U.S. at 575

(“‘the enormity of the offense’”) (quoting Day v.

Woodworth, 54 U.S. {13 How.) 363, 371 (1851)), into a

battle of comparables. Parties would inundate the

court with analogous legislative judgments and

presentations of the record in other punitive cases in

order to make meaningful comparisons.

In this case, the supreme court was unable to

identify a statutory penalty that would be directly

applicable to the long-term pattern of recklessness

and conscious indifference that resulted in the death

of a chiid and that would be comparable to Petition-

er’s misconduct. Instead, the closest analogous penal-

ty was a fine of only $125,000 that can be imposed on

a corporation for a reckless homicide under Tenn.

Code. Ann. § 39-13-215. The supreme court did not

believe, however, that this criminal statute could

reasonably have given Petitioner or any other manu-

facturer comfort that it would not be subject te a

large punitive damages award as a result of reckless

conduct shown by the evidence in this case. Rather,

the court cited its decision in Hodges, 833 S.W.2d at

901-02, which listed the factors governing a punitive

damages award which were “sufficient to provide

[Petitioner] with notice that consciously disregarding

the safety of Tennessee citizens could subject it to a

considerably large punitive damage award.” Pet. App.

35a & n.&. Nor did the court consider such a minis-

cule fine effective in punishing or deterring the

misconduct at issue. /d. at 36a.

Nothing in this Court’s jurisprudence recom-

mends taking the highly reprehensible misconduct

here, concluding that the award is justified on that

basis and is proportionate to the harm done, and then

reducing it to the level of an ill-fitted legislative

fine or penalty, as Petitioner proposes. The inappro-

priateness of Petitioner’s argument is underscored by

the analysis this Court undertook in State Farm,

where this Court described the misconduct at

issue there as low on the reprehensibility scale,

identified a $10,000 criminal fine as the most

relevant comparable, and still suggested that the

punitive damages should be on the order of $1 mil-

lion. State Farm, 538 U.S. at 419, 429. Critically, this _

Court noted that a “criminal penalty has less utility”

to help “determine the dollar amount of the award”

than it has in relating the “seriousness with which a

State views the wrongful action.” Jd. at 428. Review

of Petitioner’s claim on the comparability prong of

Due Process analysis is not warranted, and Petition-

er’s argument lacks merit.

Finally, as part of its excessiveness argument,

Petitioner suggests the untenable claim that the 1:1

ratio this Court suggested in State Farm, 538 U:S. at

429, comprises a constitutional maximum for every

award of $1 million or more. Pet. 25-30. In advancing

this unjustified claim, Petitioner manufactures a

mathematical bright-line straitjacket out of preceden-

tial cloth that this Court has repeatedly, categorically,

and wisely declared cannot be woven together. See

State Farm, 538 U.S. at 424-25 (“(WJe have been

reluctant to identify concrete constitutional limits on

the ratio between harm, or potential harm, to the

plaintiff and the punitive damages award.... We

decline again to impose a bright-line ratio which a

punitive damages award cannot exceed.”) (emphasis

added; citations omitted). See also BMW, 517 U.S. at

582 (“[WJe have consistently rejected the notion that

the constitutional line is marked by a simple mathe-

matical formula”); Pac. Mut. Life Ins. Co. v. Haslip,

499 U.S. 1, 18 (1991) (“We need not, and indeed we

cannot, draw a mathematical bright line between the

constitutionally acceptable and the constitutionally

unacceptable.”) (emphasis added).

In fact, the same paragraph in State Farm that

suggests a single-digit ratio was “perhaps” appropri-

ate when the compensatory award was “substantial”

reiterated that “there are no rigid benchmarks that a

punitive damages award may not surpass” and that

“itlhe precise award in any case, of course, must be

based upon the facts and circumstances of the defen-

dant’s conduct and the harm to the plaintiff.” State

Farm, 538 U.S. at 425.

The “facts and circumstances,” as the Tennessee

Supreme Court found, justify this award. It is further

justified because “the monetary value of noneconomic

harm might have been difficult to determine.” /d.

(citations omitted). It is well established that wrong-

ful death damages fail to compensate for the harm to

the decedent. See A. Mitchell Polinsky & Steven

Shavell, Punitive Damages: An Economic Analysis,

111 Harv. L. Rev. 869, 941-42 (1998); see also WIL-

LIAM LANDES & RICHARD POSNER, THE ECONOMIC

STRUCTURE OF TorT LAW 187 (1987) (concluding there

is a “systematic underestimation of damages in a

wrongful-death case.”). Because wrongful death

damages largely reflect the financial contribution of

the decedent to the family, awards for the death of a

child are comparatively low. Polinsky & Shavell, 111

Harv. L. REV. at 941 n.229. Thus, this is “an area of

law in which the measurement of loss in pecuniary

terms presents intractable difficulties.” Dorsey D.

Ellis, Fairness and Efficiency in the Law of Punitive

Damages, 56 S. Ca. L. REv. 1, 30 n.140 (1982).

This Court has mandated a fact-sensitive inquiry

for excessiveness. The Tennessee Supreme Court

discharged that mandate with utmost care after de

novo review of this extensive record. As a result, it is

utterly improper to examine the few cases with

substantial compensatory damage awards as well as

punitive damages across the circuits and purport to

compare whether they fall uniformly within a 1:1

ratio, as Petitioner suggests. Petitioner’s invitation

would elevate “ratio” to greater importance than

“reprehensibility,” which has always been justifiably

preeminent in this Court’s Due Process jurispru-

dence.

The fact that this punitive damage award is well

within a single-digit ratio, without considering poten-

tial harm for which punitive damages were originally

awarded but vacated, clearly indicates that the award

crosses no impermissible lines. This award warrants

no further review.

Ill. PETITIONER FAILED TO RAISE THE

INSTRUCTIONAL ISSUE ON APPEAL

AND WAIVED ANY ERROR

Petitioner admits that it did not argue as error

the trial court’s failure to give its proposed instruc-

tion barring punishment for injuries sustained by

non-parties. Pet. 30-31. Petitioner attempts to excuse

that neglect by claiming it did argue in the court of

appeals error regarding the admission of evidence of

harm to non-parties. /d. (citing Philip Morris USA v.

Williams, 549 U.S. 346 (2007)) (“Williams IJ”). Peti-

tioner’s third Question Presented seeks a GVR in

light of this Court’s prospective treatment of Philip

Morris USA v. Williams, No. 07-1216, 2009 WL

814803 (U.S. Mar. 31, 2009) (“Williams II’), which

this Court has now reached, dismissing the matter as

imprcvidently granted by per curiam order dated

March 31, 2009. As a result, there is no reason to take

up Petitioner’s now mooted GVR request, and that

should end the inquiry on Petitioner’s third Question

Preserted.

Even if this Court had not dismissed Williams II,

however, there still would have been no basis to take

up Petitioner’s third question for three essential

reasons.

First, Petitioner’s current argument is a patently

different one from the claim of error concerning jury

instructions in Williams I] and does not cure Peti-

tioner’s waiver of its claim of instructional error.

Second, the argument Petitioner did put forth in the

court of appeals was manifestly incorrect as a matter

of law. Finally, at Petitioner’s request, Petitioner had

the benefit of a conforming procedure that assured

the punitive damages do not reflect improper consid-

erations.

In Williams I, this Court specifically held that

evidence of harm to non-parties was admissible,

contrary to the argument Petitioner put forth in the

court of appeals. This Court quoted the Oregon Su-

preme Court with approval about the relevance of

harm to non-parties when it said that the “jury could

consider whether Williams and his misfortune were

merely exemplars of the harm that Philip Morris was

prepared to inflict on the smoking public at large.”

549 U.S. at 356 (quoting Williams v. Philip Morris,

Inc., 340 Or. 35, 51, 127 P.3d 1165, 1175 (2006)). After

all, “harm to others shows more reprehensible con-

duct” and remains part of the punitive damage equa-

tion. 549 U.S. at 355. Thus, Petitioner’s only remotely

relevant argument before the court of appeals was

patently wrong as a matter of law.

Petitioner’s utter neglect of any jury instruction

issue at the court of appeals constituted abandon-

ment of Petitioner’s claimed Williams // issue that it

(now mootly) asked this Court to hold for potential

GVR treatment. At trial, Petitioner submitted an

(albeit erroneous) instruction relating to punishment

and the use of evidence of harm to nonparties.’ Pet.

App. 37a. In the intermediate appellate court, howev-

er, Petitioner “did not question the rejection of its

proposed jury instruction.” Jd. When Petitioner

attempted “to resurrect this issue” before the Tennes-

see Supreme Court, the court ruled that the failure to

preserve the issue in Petitioner’s appeal to court of

appeals operates as a waiver of the claim of error

' The instruction adhered to Petitioner's erroneous view

that evidence of harm to nonparties was inadmissible in the

punitive-damage phase of the case. Resp. App. 17a-18a.

under longstanding state appellate rules. /d. (citing

Brown, 181 S.W.3d at 281 n.5; Sutherland, 197 S.W.

at 864 (“These are the only errors that were assigned

in the Court of Civil Appeals. Others attempted to be

assigned here must be overruled”)). See also Alexan-

der v. Armentrout, 24 S.W.3d 267, 273 (Tenn. 2000)

(where “counsel made no argument regarding the

Statute of Frauds to the Court of Appeals,” the “issue

was not properly preserved for appeal, it is waived

and will not be considered by this Court.”).

That waiver is sufficient to deny the Petition as

to the third Question Presented. This Court has

repeatedly adhered to its. declaration § that

“tolrdinarily, this Court does not decide questions not

raised or resolved in the lower court.” Youakim v.

Miller, 425 U.S. 231, 234 (1976). See also Matsushita

Elec. Indus. v. Epstein, 516 U.S. 367, 379 n.5 (1996)

(Court “generally doles] not address arguments that

were not the basis for the decision below.”); Duignan

v. United States, 274 U.S. 195, 200 (1927) (same),

While this limitation on issues eligible for review

comprises a prudential consideration, rather than a

restriction on jurisdiction, this Court has made plain

that it will not depart from that general rule absent a

showing of “‘unusual circumstances,” Taylor v.

Freeland & Kronz, 503 U.S. 638, 646 (1992) (citation

omitted). No unusual circumstances in this case

justify an exception to this well established rule.

Permitting a party, after a first appeal of right, to

“discover” new arguments in order to keep a case

alive undermines the orderly administration § of

justice, as well as fundamental precepts of fairness. A

court properly looks askance at such a request in

order to prevent parties from formulating an endless

string of new issues for further appellate considera-

tion. The uncompromising approach enunciated by

the Tennessee Supreme Court in its repeated deci-

sions on this issue serve as a bulwark against such

misuse of the appellate system.

Raising the issue on appeal for the first time in a

subsequent discretionary appeal before the Tennessee

Supreme Court, which under its rules will not enter-

tain an issue not raised and argued at the prior

appellate level, does not constitute presentation and

denial by the lower court as is necessary to invoke

this Court’s jurisdiction. This case presents no war-

rant to depart from the sound policy of denying

certiorari to issues not considered below.

Even without Petitioner’s indisputable waiver of

the issue, Petitioner is entitled to no relief. Specifical-

ly, Petitioner’s proposed instruction No. 22 contra-

dicts Williams I and is an incorrect statement of law.

In that instruction, (Resp. App. 1l7a-lsa), the first

sentence stated: “In determining the appropriate

amount of punitive damages, if any, in this case, you

may consider only the harm to the plaintiff in this

case.” (Emphasis added). That instruction was clearly

an incorrect statement of law, as Williams 7 itself

confirmed. This Court held the jury could consider

“actual harm to nonparties” in determining the

reprehensibility of Petitioner's misconduct, 549 U.S.

at 355, and that determination remains the “most

important indicium of the reasonableness of a puni-

tive damages award.” BMW, 517 U.S. at 575. Plain-

tiffs objected to Petitioner’s request, and the trial

court properly declined to give it. Pet. App. 37a.

Third, Petitioner is entitled to no relief because

the trial judge’s and supreme court’s actions in re-

viewing and remitting the verdict to ensure no pu-

nishment for harm to nonparties are exactly what

this Court invited state courts to do in Williams I.

Specifically, Tennessee’s Hodges framework for the

trial judge’s de novo review, findings of fact, and

conclusions of law reducing and/or approving the

award epitomizes the very “procedures” contemplated

by Williams I to ensure the defendant is not punished

“directly on accourt of harm” to others. See Williams

I, 549 U.S. at 356 (approving “flexibility” of state to

address issue with instructions or “procedures,”

including contemplating that the state court itself

could make “a change in the level of punitive damag-

es”). The trial judge’s Hodges review resulted in a

reduction in the amount of punitive damages from

$98 million to $20 million, and the supreme court

upheld only $13 million of that amount. The com-

bined actions of the trial judge and supreme court

reduced the ratio to less than 3 to 1 of punitive dam-

ages total harm caused by Petitioner's conduct, or

5.35 to 1 of punitive damages to Petitioner's allocated

share of compensatory damages. Pet. App. 7a. Fur-

ther, in setting the remitted punitive damages award,

the trial judge's order made clear he considered the

notice of injuries to nonparties from other similar

product failures solely on the issue of Petitioner’s

“notice,” “knowledge,” or “reprehensibility.” Pet. App.

167a-68a.; see also id. at 170a-71a (considering Peti-

tioner’s “aware[ness} that its yielding minivan seats

were causing injury and death to children” under

Hodges subpart 2 — “reprehensibility”). Most impor-

tant, when selecting the remitted amount of punitive

damages, the trial court considered solely the rela-

tionship or ratio of the compensatory damages or

harm in this case to the punitive damages. /d. at

175a-76a.

For the foregoing reasons, the petition for a writ

CONCLUSION

of certiorari should be denied.

April 6, 2009

Respectfully submitted,

JAMES E.. BUTLER, JR.

Counsel of Record

GEORGE W. FRYHOFER III

LEIGH MARTIN MAY

ALAN J. HAMILTON

BUTLER, WOOTEN,

& FRYHOFER LLP

2719 Buford Highway

Atlanta, GA 30324

(404) 321-1700

GAIL VAUGHN ASHWORTH

GIDEON & WISEMAN PLC

1100 Noel Place

200 Fourth Avenue, North

Nashville, TN 37219

(615) 254-0400

Counsel for Respondents

APPENDIX A

Tenn. Code Ann. § 40-35-111

Title 40: Criminal Procedure

CHAPTER 35 - CRIMINAL SENTENCING

REFORM ACT OF 1989

Part 1 - General Provisions

§ 40-35-111 - Authorized sentences;

prison terms or fines; reports

* a” *

a corporation for an offense defined in title

39 or for any offense defined in any other

title for which no special corporate fine is

specified, is a sentence to pay an amount, not

to exceed:

(4) One hundred twenty-five thousand dol-

lars ($125,000) for a Class D felony

APPENDIX B

49 C.F.R. § 571.207

Title 49: Transportation

PART 571 - FEDERAL MOTOR VEHICLE

SAFETY STANDARDS

Subpart B - Federal Motor Vehicle

Safety Standards

§ 571.207 Standard No. 207; Seating systems.

Sl. Purpose and scope. This standard establishes

requirements for seats, their attachmenc assemblies,

and their installation to minimize the possibility of

their failure by forces acting on them as a result of

vehicle impact.

S2. Application. This standard applies to passenger

cars, multipurpose passenger vehicles, trucks and

buses.

S3. Definitions.

Seat adjuster means the part of the seat that provides

forward and rearward positioning of the seat bench

and back, andor rotation around a vertical axis,

including any fixed portion, such as a seat track. In

the case of a seat equipped with seat adjusters at

different levels, the term means the uppermost seat

adjuster.

54. Requirements.

$4.1. Driver’s seat. Each vehicle shall have

an occupant seat for the driver.

<Text of $4.2 intro. par. effective until April 20,

2009.>

54.2. General performance requirements.

When tested in accordance with S5., each oc-

cupant seat, other than a side-facing seat or

a passenger seat on a bus, shall withstand

the following forces, in Newtons.

S4.2. General performance requirements.

When tested in accordance with S5, each oc-

cupant seat shall withstand the following

forces, in newtons, except for: a side-facing

seat; a passenger seat on a bus other than a

school bus; a passenger seat on a school bus

with a GVWR greater than 4,536 kilograms

(10,000 pounds); and, a passenger seat on a

school bus with a GVWR less than or equal

to 4,536 kg manufactured before October 21,

2011.

(a) In any position to which it can be

adjusted — 20 times the mass of the seat

in kilograms multiplied by 9.8 applied in

a forward longitudinal direction;

(b) In any position to which it can be

adjusted 20 times the mass of the seat

in kilograms multiphed by 9.8 applied in

a rearward longitudinal direction;

the seat — the force specified in para-

graph (a), if it is a forward facing seat, or

paragraph (b), if it is a rearward facing

seat, in each case applied simultaneous-

ly with the forces imposed on the seat by

the seat belt assembly when it is loaded

in accordance with S4.2 of § 571.210;

and

(d) In its rearmost position — a force

that produces a 373 newton meters mo-

ment about the seating reference point

for each designated seating position that

the seat provides, applied to the upper

cross-member of the seat back or the up-

per seat back, in a rearward longitudinal

direction for forward-facing seats and in

a forward longitudinal direction for

rearward-facing seats.

54.2.1. Seat adjustment. Except for ver-

tical movement of nonlocking suspension

iype occupant seats in trucks or buses,

each seat shall remain in its adjusted

position when tested in accordance with

the test procedures specified in S5.

$4.3. Restraining device for hinged or folding

seats or seat backs. Except for a passenger

seat in a bus or a seat having a back that is

adjustable only for the comfort of its occu-

pants, a hinged or folding occupant seat or

eccupant seat back shall —

(a) Be equipped with a self-locking de-

vice for restraining the hinged or folding

seat or seat back, and

(b) If there are any designated seating

positions or auxiliary seating accommo-

dations behind the seat, either imme-

diately to the rear or to the sides, be

equipped with a control for releasing

that restraining device.

S4.3.1. Accessibility of release control. If

there is a designated seating position

immediately behind a seat equipped

with a restraining device, the control for

releasing the device shail be readily ac-

cessible to the occupant of the seat

equipped with the device and, if access

to the control is required in order to exit

from the vehicle. to the occupant of the

designated seating position immediately

behind the seat.

S$4.3.2. Performance of restraining de-

vice.

$4.3.2.1 Static force.

(a) Once engaged, the restraining

device for a forward-facing seat

shall not release or fail when a for-

ward longitudinal force, in newtons,

equal to 20 times the mass of the

hinged or folding portion of the seat

in kilograms multiplied by 9.8 is ap-

plied through the center of gravity

of that portion of the seat.

fal

(b) Once engaged, the restraining

device for a rearward-facing seat

shall not release or fail when a

rearward longitudinal force, in new-

tons, equal to 8 times the mass of

the hinged or folding portion of the

seat in kilograms multiplied by 9.8

is applied through the center of

gravity of that portion of the seat.

$4.3.2.2. Acceleration. Once engaged, the

restraining device shall not release or

fail when the device is subjected to an

acceleration of 20 g., in the longitudinai

direction opposite to that in which the

seat folds.

S4.4. Labeling. Seats not designated for oc-

cupancy while the vehicle is in motion shall

be conspicuously labeled to that effect.

S5. Test procedures.

S5.1. Apply the forces specified in S4.2(a)

and $4.2(b) as follows:

S5.1.1. For a seat whose seat back and

seat bench are attached to the vehicle by

the same attachments.

(a) For a seat whose seat back and

seat bench are attached to the ve-

hicle by the same attachments and

whose height ts adjustable, the loads

are applied when the seat is in its

highest adjustment position in ac-

cordance with the procedure or pro-

cedures specified in S5.1.1(a\1),

55.1.1(a)(2), or $5.1.1(a)(3), as ap-

propriate.

(b)

(1) For a seat whose center of

gravity is in a horizontal plane

that is above the seat adjuster

or that passes through any part

of the adjuster, use, at the

manufacturer’s option, either

$5.1.1(b) or, if physically possi-

ble, S5.1.1(c).

(2) For a seat specified in

$5.1.1(a)(1) for which it is not

physically possible to follow the

procedure in S§5.1.l(c), use

$5.1.1(b).

(3) For a seat whose center of

gravity is in a horizontal plane

that is below the seat adjuster,

use $5.1.1(c).

(4) For all other seats whose

seat back and seat bench are at-

tached to the vehicle by the

same attachments, use $5.1.1(b).

Secure a strut on each side of

the seat from a point on the outside

of the seat frame in the horizontal

plane of the seat’s center of gravity

to a point on the frame as far for-

ward as possible of the seat ancho-

rages. Between the upper ends of

the

struts attach a nmigid cross-

member, in front of the seat back

frame for rearward loading and be-

hind the seat back frame for forward

loading. Apply the force specified

by S4.2(a) or S4.2(b) horizontally

through the rigid cross-member as

shown in Figure 1.

of the portion of the seat that is

above the lowest surface of the seat

adjuster. On each side of the seat,

secure a strut from a point on the

outside of the seat frame in the ho-

rizontal plane of cg, to a point on the

frame as far forward as possible of

the seat adjusted position. Between

the upper ends of the struts attach a

rigid cross-member, in front of the

seat back frame for rearward load-

ing and behind the seat back frame

for forward loading. Find “cg,,” the

center of gravity of the portion of the

seat that is below the seat adjuster.

Apply a force horizontally through

eg, equal to 20 times the weight of

the portion of the seat represented

by cg,, and simultaneously apply a

force horizontally through cg, equal

to 20 times the weight of the portion

of the seat represented by cg.,,.

S$5.1.2 If the seat back and the seat

bench are attached to the vehicle by dif-

ferent attachments, attach to each com-

ponent a fixture capable of transmitting

a force to that component. Apply forces,

in newtons, equal to 20 times the mass

of the seat back in kilograms multiplied

by 9.8 m/s’ horizontally through the cen-

ter of gravity of the seat back, as shown

in Figure 2 and apply forces, in newtons,

equal to 20 times the mass of the seat

bench in kilograms multiplied by 9.8

m/s’ horizontally through the center of

gravity of the seat bench, as shown in

Figure 3.

$5.2 Develop the moment specified in S4.2(d)

as shown in Figure 4.

S5.3 Apply the forces specified in $4.3.2.1(a)

and (b) to a hinged or folding seat as shown

in Figure 1 and to a hinged or folding seat

back as shown in Figure 5.

S5.4. Determine the center of gravity of a

seat or seat component with all cushions and

upholstery in place and with the head re-

straint in its fully extended design position.

BEST AVAILABLE COPY

lla

MORIZONTAL FORCE (PF) TO

SEAT GACK AT UPPER —. ===>

CROSSMEMBER t he

SEATING REFLAEACE POINT

\ ~~

MOMENT (? 2 DI COMPUTED ABOUT THE

SEATING REFERENCE POINT

FIGURE 4

MORLIONTAL FORCE THROUGH

Tee COMTER OF Gravity

t1G1D surroet

MAT IN LATOWED POSITION

FIGURE 5

[52 FR 7868, March 13, 1987; 53 FR 30434, Aug. 12,

1988; 59 FR 37167, July 21, 1994; 60 FR 13647,

March 14, 1995; 63 FR 28935, May 27, 1998; 73 FR

62779, Oct. 21, 2008}

12a

SOURCE: 36 FR 22902, Dec. 2, 1971; 50 FR 21056,

June 6, 1985; 51 FR 9456, March 19, 1986; 59 FR

37175, July 21, 1994; 59 FR 38940, Aug. 1, 1994; 60

FR 58524, Nov. 28, 1995; 64 FR 10815, March 5,

1999; 64 FR 47582, Aug. 31, 1999, unless otherwise

noted.

AUTHORITY: 49 U.S.C. 322, 30111, 30115, 30166 and

30177; delegation of authority at 49 CFR 1.50.

13a

APPENDIX C

49 U.S.C. § 30102

Title 49: Transportation

CHAPTER 301 - MOTOR VEHICLE SAFETY

Subchapter I - General

§ 30102 - Definitions

(a) General definitions. ~- In this chapter —

+ * »

(9) “motor vehicle safety standard” means a

minimum standard for motor vehicle or mo

tor vehicle equipment performance.

APPENDIX D

Tenn. Code Ann. § 29-28-1064

Title 49: Remedies and Special Proceedings

CHAPTER 28 -

PRODUCT LIABILITY ACTIONS

§ 29-28-104 - Government standard;

compliance; presumptions

Compliance by a manufacturer or seller with

any federal or state statute or administrative

regulation existing at the time a product was

manufactured and prescribing standards for

design, inspection, testing, manufacture,

labeling, warning or instructions for use of a

product, shall raise a rebuttable presumption

that the product is not in an unreasonably

dangerous condition in regard to matters

covered by these standards.

APPENDIX E

Tenn. Code Ann. § 39-13-215

Title 39: Criminal Offenses

CHAPTER 13 - OFFENSES AGAINST PERSON

Part 2 - Criminal Homicide

§ 39-13-215 - Reckless homicide

(a) Reckless homicide is a reckless killing of

another.

(b) Reckless homicide is a Class D felony.

16a

APPENDIX F

IN THE CIRCUIT COURT FOR

DAVIDSON COUNTY, TENNESSEE

JEREMY FLAX and RACHEL SPARKMAN,

as the Natural Parents of Joshua Flax, deceased;

RACHEL SPARKMAN, individually, Plaintiffs

DAIMLERCHRYSLER CORPORATION,

and LOUIS A. STOCKELL, JR., Defendants

NO. 02C-1288

DEFENDANT DAMLERCHRYSLER

CORPORATION’S PROPOSED JURY

INSTRUCTIONS ON PUNITIVE DAMAGES

Joy Burns # 019180

Lawrence A. Sutter #021353

Sutter O’Connell Mannion & Farchione

217 Second Avenue South

Franklin, TN 37064

(615) 791-1031

In determining the appropriate amount of puni-

tive damages, if any, in this case, you may consider

only the harm to the plaintiff in this case. Any indi-

viduals other than the plaintiff who might claim to

have been harmed by DaimlerChrysler have the right

to bring their own lawsuit seeking damages for any

alleged injuries they may have incurred. Therefore, if

you decide to award any punitive damages, your

award must be limited to redressing the injuries

incurred only by the plaintiff in this lawsuit.*

* *

* See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.

408, 423 (2003) (“Due process does not permit courts, in the

calculation of punitive damages, to adjudicate the merits of

other parties’ hypothetical claims against a defendant....

Punishment on these bases creates the possibility of multiple

punitive damage awards for the same conduct; for in the usual

case nonparties are not bound by the judgment some other

plaintiff obtains.”); Neal v. Carey Canadian Mines, Ltd., 548

F. Supp. 257, 376-77 (ED. Pa. 1982) (“Each tort committed by

the defendant is individual and peculiar to that particular

plaintiff who has brought suit. Punitive damages are a recover

able item of relief so long as the conduct exhibited by the

defendant with respect to that individual plaintiff can be termed

as ‘outrageous’ and a reckless indifference to the rights of that

plaintiff.”) See also BMW if N. Am.. Inc. v. Gore, 517 U.S. 559,

980 (1996); Continental Trend Resources, Inc. v. OXY USA, Inc.,

101 F.3d 634, 639-40 (10th Cir. 1996) (“In figuring harm both

actual aad potential harm may be considered. But it must be

harm to these plaintiffs, not to others.”); Rogins®y v. Richard

son-Merrell, Inc., 378 F.2d 832, 839 (2d Cir. 196°) (Fnendly, J

“The legal difficulties engendered by claims for punitive

‘Continued on following page)

damages on the part of hundreds of plaintiffs are staggering. If

all recovered punitive damages in the amount here awardec

these would run into tens of milhons, as contrasted with the

maximum criminal penalty of ‘imprisonment for not more than

three years, or a fine of not more than $10,000, or both such

imprisonment and fine.’ We have the gravest difficulty in

perceiving how claims for punitive damages in such a multiplict-

ty of actions throughout the nation can be so administered as to

avoid overkill r

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.