# Petition for ReHearing — Young v. Cargill > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2138%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for ReHearing - **Published:** January 1, 2010 - **Citation:** 562 U.S. 840 ## Text IN THE SUPREME COURT OF THE UNITED STATES () PISTTTION FOR A WRIT O} RIIORATL TO THhk UNITED SIATI. COURT OF APPEALS FOR THEs Vig tT TION Od Phd] P10) 144 ( Mas 1] J ry ds rool, KI ( (5! j fon fa QUESTIONS PRESENTED ViIu. PHIec UNITED STATIS FILE VDDITIONAL CHARGES AGAINS | CARGIILA FOR VARIOUS OTHER IWNVIRONMIENTAL VIOLATIONS? DOS CARGILL IWMPLOY UNDOCUMENTED WORKER: PURPOSELY TOAVOTD EMPLOY LIABILITY, THUSLY DEMONSTRATING A } PATTER OF ABUSK TOWAK WOKERS INJURED ATT PROC ING PLANT, “MAT Ie PONSIBIEDTDS Ye EGMI TT Ok THs LAW? TABLIE OF CONTENTS QUESTIONS PRESENTED LABLEIE OF CONTENT: dj TABLA OF AUTTHORETINS CET) iii TABLE OF APPENDICK, IN PRODUC TION | REASONS FOR GRANTING Rh ARING/RIECONSIDICRA'TION | The Courts Decision in Bielunos Misty Dawn Inc. No.09-2048 in 4 . A the burst Circuit Court of Appea and Barnett v. Bank of America No. $1009-1326 in the third district (Court of Apype als of the State of hlornida wa gecided hortly alte Vrit was dened in the mistant Casas } { L hier me mostantial grounds te rearity Uda Vrjit that were not pore hous pore ented namely Lig by} 01 ‘rial p13) 1a) Gnvironmentatl | 1 | (VOONCLUSION TABLE OF AUTHORITIES CITED sarnett v. Bank of America No. {109 1326, Third District Court of Appeals for the State of Florida... (, Baum v. Helget Gas Products, Inc., 440 Mood 1O19, 1022 (&th Ci ZOOG) 1 / Siglunos v. Misty Dawn Ine. no.09%°> 204% (he United States Court of Appeals for the hourst Carcuit ... ay | Bourassa v Busch 929 So.Zd 552 oft ee | | Mapinoza v Cargill no: O9- EIEIO Tr the UJnited States Court of Appeals 5! Circuit 1G Gates v WR Grace et al case no? #08 « 2560-t-277TBM United States District Court for the Middle District of Florida Tampa Division.......... error |i In RE: Cargill Fertahzer OGC Iile No. 04 161%; DEP 04-1575 September 10, 2004 State of Mlorida [de partinne nt of lonvironimental Protection iZ Ney Leasing Corporation Inc. v. Cargill Meat Logistics Solutions No 2:09-¢ev-01051 in the United States District Court for the Northern District of lowa, Muastern Division ... . Pan Pistia 1 United States of America v Cargall Ince No.99- 1875 In the United States District (Court for the District of Columbia L/ United States v. Cargill 10-2752 |: TABLE OF APPENDICES 4 \ppendix A* exhibit CAROOI2Z1 Appendix Be exhibit CAROOO2G Append ©: lexhibit CAROOOGS lexhubit CAROOOS4 exhibit CAROOOGE Appendis 1) \ppendix ft Appendix I; Article from Lakeland Ledger Dated December 17.200] Appendix G- Bielunos v. Misty Dawn Ince no O09 204% the United States Court of Appeals for the lurst Cirecuat Narnett v Bank of America no. SDOO- 1371 Third District Court of Appeal for thi tate of Florida PETITION FOR REHEARING Petitioner respecttully requests that this court prant rehearmy/reconsideration of its order dated October 4, Z0O10, which denied certiorari, and that the Court now prant certiorari INTRODUCTION Qn December 29, 2001, at approximately Zacm., Ms. Lorene Young was injured in an anhydrous ammonia gas explosion at Cargill’s citrus processing plant in Avon Park, kl. More than thirty employees largely Hispanic, were taken to local hospitals in the area for treatment Anhydrous ammonia, im use for refrigeration, was stored in large ammonia receivers and piped throughout the plant.! After the accident, top plant Officials met to discuss an action plan to Climuinate amionia reef valves trom reheving at ground level. According to handwritten notes of a mecting held with administrators Ray Spurlock (Maintenance Manaper), Pete (pope madix A exhibit lab le i ( AROOLY I Larry bladden Genvironmental Health are Safety Manager), Mike Loudermilk (Safety Supervisor) Mike Maloney CCitru: lorce Safety Supervisor), Bill Brey (Director of Operations), Hiram Saylor (Refrigeration Maintenance), and Gary (CCutral (Citrus Force-Supervisor), a uction valve had been closed prior to the acadent. They discussed the valve bnilarity toa water hose valve and how it could have closed madvertently. When the evaporators operator turned off thi essence umts. the rehet valve mnimediately closed. With nowhere to escape, pressure built up anside the pipes and triggered the release of ammonia by the rehet valve The notes from the meeting indicate that the relnef valve was vented to the atmosphere ail round level. thre testimony of the plarnatitt Well UW Othe! Cinployes the ow itl Ww not built an accordance with the planus, did not run up to the ceil and did not completely parate tt emporary banking center from the l CPuction area Vecording to the depositro thie pe Lil ay Ween the I Tructro it and thi Le] MOT ETSY I) Lint! ter allowed a Liat if au tL, Odo! and tun nh aday eat COMmMputlel nd tabi * oe a covered by i thar raver Oo] bul l neha ( ete { bers partic Ih elnp vere breathing ¢ d tum t le t precarat rial | 1) BEGsJ ‘Thy I , I wa Phice bosanike Gemed that any of the air from the construction area entered the bank's temporary facility. The bank arvued that at responded properly to Chics miployes complaint: and thatas of December 2002 piterion air testing revealed that the airy Guality in the building wa: Nithinn a normal ragnpe The court concluded that the cianployes “onpaved in conduct which was thstantially certain to result in injpury of deiithi This case questioned “whether a reasonable person would understand that thie Grployers conduct was: ubstantially certain to result in anyury or death to the Cin ployce Under this approach, the @inployers actual mitent as not controlling lovidence of the welef valves dangerous location ain the mpstant case) is currently an unaddre edassue of material fact relevant to the intentional tort exception to blondas Workers Compensation Craployer gaimianaby Chatase Lt) bodice bibeenbiomal Lor { Cplion appli 1] reasonable person would view as “substantially certain to result in wayury or death ffoure it ffsasch hntertarinment.$ 929 So.2d4 b52. 556 (Z0O0G6) rouny Was required bo ace aharea shi unaware would certaimly Expose her to moxious levels of animonia il the rei { briptunse resulted from Carvill failure to (1) { | ‘ Ldie bao ial fat «yf tiie y ¢ ag | Yella vs Ld) Criployer Working in Close proximity to lhe relriveranl YSlein and to adhere to Gngunecring design that would allow thie relicl valve to fulfill their purpose sately 1 die bbCLigy) i} Ve bhnadvertent place Hier gil also dmplicate a disregard Jor the seriou ity of tizargn ot mishandling could QUISTIONS PRESENTED WILL THI UNITED STATES FILE ADDITIONAL CHARGIOS AGAING | CARGILL FOR VARIOUS OTHER ENVIRONMENTAL VIOLATIONS? fn the United States Court of Appeals for the fight Circuit the povernment through the Mnvironmental Protection Agency ha filed suit against Carpall, In United States v. Carpall 10-2737 the vovernment issued ( argaull Vabiow Citations for au pollution and (arpill has not comple do with vovernmcntal regulations, and since some of the violations start as carly as January 1997 and litigation is in propre it) feasible that the United States may “mend their complaint to include violations of OSHA re ulations on ( aryalls bdorida plants The courtaun In Rk: Cargill Fertalizer tated On September 5, 2004 Cargill reported the breach of a pypsum dam Within the System, resulting an the discharge ol partially neutralized o1 Untreated proce wastewater nto water: Ol the State Cargill ha mamaveda Loops Ula PiGd\ and temporarily play the breach hilowever, the oystem continue to be in the cmusttreat) trivver statu peciied in VO CVPR 418. TS and Chapter 62-672 of the blorida Administrative Code with proc wstewater levels at or near thi miaxXinium emergency Elevation Phese emergency levels Cannot be sustamed ove long period of time without compromising the mbeyrity of the dam fracture. Cargill's third-party enpinee) has recommended that levels wathin Cargill's cooling pond be lowered as OOn po btole lo prevent a cata trop lise failure resulting in severe harm to human health and the environment lhe department of luivironmental Protection entered the following order Gn part) Cargill i hereby ordered to take bnmedimte actions to stabilpze (liith zil {hie bacility fo preventa cata Lropthia release of untreated wastewater trom thie baciity. Action to permanently Stabilize L pie aica bicald doe completed a Creat) «il Cargill shall submit plaas within 24 hours of the time of rec Iptl ol this Order to three De partment for review and approval to mneutradize a miimum volume of LOO miitlion gatlons of process wastewater with caustic soda, lime or other suitable neutralizing agent im other compartinent bi) the cooly pond or othe pods Gob sale Any actions taken by Cargill under tha Phomediate Final Order shall not be construed to limit the Department’ exereme ofits cntorcement authority (nor shall Cargvilbcause damave to natural resources. di thy United States District Court for the Middle District of Florida ‘Tampa Division, Gates v WR Grace et al@Cargill is nonamed defendant) case mo: 8:08 ev 2560 (277 BM Mr. Gates, the prdccanital cull £¥ 4 d that Cargill and the other defendant: (successors dn interest) neglipently released and dis harged COX Contaminants into the pround waters eucpuunde rsystem, whi i Spree ad bile Nir Gaates well which he used for drinking ane cooking, Mr. Caate: also alleged threat Cargill released and discharged toxr contaminants mto the am and soil apon bia Properly DbOKS CARGILE LMPILO) UINDOCUMEN TIED WOKKTR PURPOSELY 'POAVOLD IEMPILAOSA TK LIABILITY, THUS) DIEMONSTTRATTING A SYS TIEMA TH PATYRIERN OF ABUSE TOWARDS TT. WOKERS INJURED AT TE tbindocumented WOPKCE Opie WHOL We bayuread i the ¢ y plo ron of Decembe OO] Pia tha 2 €FIYCUIL COME O! \pp the Case of fOsp moze \ Cargill hae. UI eewae wit picanitall cal oO Worked th IS CARGH hid bYOTEMATH VVOTLDANCEE OF RESPONSIBILITY A rORM OF CONTIEMPT OF Till LAW On October 6, VO the Ulnited Stats Distret Court for the Northern District of lowa, Mastern Division Ney Leasing Corporation Inc. v. Cargill Meat Logistics Solutions No 2-O9O ev O1L05 1 Ina contract dispute Cargill wa demied summary pudginent, the court stated “Summary judgment is no pp rop reat if the nNon-moving party can Sel forth specity fact by attdavait depo ition, or other evidence showing i Peruiie issue for trial. Quotihy Beau \ Helget Gas Products, Inc., 410 bkoSd LOS lOve? th Cir. 2ZOOG) Phe court in Ney also tated \ party's entitlement to plead alternative theories of recovery should not be confused with the election ot remedi riile Phos case is set for trial on November 8, BOLO. Inthe United State District Court for the District of Columbian the courtain United States of America vy Cargall Inc. 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Ammonia Leak nospitalizes: 5 “ LocakiState | Lake Alfred hee pl — QUESTIONING SUSPECTS lim Drumm tre Nees = “ ; afa > an Nal - fered a $59, 4 roved an agree: So oe 7 ne *Howeve 3) cc $310 scttilement [or se » res the srerogative to dismiss . " a er t ; /¥ ange » 7 fesa= © Shad Licht an “FY ma BIMLUNAS v. MISTY DAWN INC Wojciech BIELUNAS, Plaintiff, Appellee, v. F/V MISTY DAWN, INC., Defendant Appellant No. 09-2048 October 08, 2010 Before BOUDIN, GAJARSAand THOMPSON, Cireuit Judge Joseph A. Kegan, with whom John David iat at 1 | and be Sail) &. K at \ Lula? WETC OY]) ? brie fol appre lant JO eph S mtace \ with Vhom James P. dacobsen and Beard Lacey & Jacobsen LLP Ap) pre lle Tha Calo according to Woy tel ee Bichlunas aus about life-altering pain aboard the F/V SHA WATCHER | Miclunas had his right foot crushed in a ehastlhy accident An orthopedi urgeon Vorking as a commercial fisherman aid it looked hike someone had taken a ledgehammer to Bielunas's foot. Hi livelthood lost, Bielunas later sued the ( el's owner, F7V Misty Dawn, Ine charging Jones Act nevlivence,! ship unsea vorthine and a right to mamtenance and cure.“ A jury returned a verdict in Bielunas's favor, and the district judyve entered padre nv agalnst Misty Dawn for $2,307,690. In this arena, Mi Dawn criticize the district judge tor admitting certain evidence and denyin motion for new trial or remiuttitua Detecting no hint of reversible erro! affirm the jyudgyment belov Backeround W pre ent the tact in the hieht most flattering to the jury’ verdict. see, ¢ Whitheld v. Melendez-Rivera, 431 I .3d ] (ist Cir. 2005). Bielunas emigrated from Poland to the United States with hi: family in 1995, eventually settling in rural] Pennsylvania. He had worked on fishin Doatl before leaving Poland, and he became a commercial fisherman her hrom 2005 through 2006, Bieluna worked tO} Mii LY Dawn a Ma cil hu ev corporation, on its vessel, the SILA WATCHER Ssalety was hardly the watchword for Misty Dawn's conduct Phe COMpany J LCi ¢ no real effort to ensure that at employee complhed with accepted satety tandard Viisty Dawn had some satety guideline but they were not posted anywhere on the LA WATCHER. Instead, the company rehed on word-of-mouth, with owner hip pa inv safety concerns to the captain Who dd thie mon to the crew. But there |} ome dispute whether ownership ever did thi ‘To make the \ a protit ibple possible, Misty Dawn stored clam ci the walkway: With the walkway blocked, crew members looking to Uta hip had LO idle Wong al thin unguarded ledge overlooking a nine foot drop mito the cargo hold or amble over a convevor belt. But the conve yor belt w nota realisti option because the belt quite lippery and the \ tem lacked adequate handrails, so the crew Gre the « aptain) opted to shimmy along tha hatch ledge Appare ntly no one told them not to do thi ‘That brings u help close the hatch that « hold, Bielunas had to indic: crew member when the ce proper posilion a wire cable ¢ hydraulically" powered machine would haul the hatch forward along the ledg [deally, one would p>! rform this job by tanding on the designated walkways. But because they were bloc ked Mieluna rode abop the closing hatch cover-that is how le and others had done it betore, and no one had ever told him to do it differently Unfortunately, he his balance Lepped onto the Pave keep from falling bhite Ut] cargo hold and got hh caught between the cover and a protruding prece of metal. “Stop Mielunas yelled, hoping to get the ittention of thi Caiman operating the th \ drawl ally powered Tii Phe doctor noticed that about halt of bone material was dead. Hie ad matter and a removed the mnilicant amount of Pi ad miu cle and U1 Li¢ LOO but ay could the wound. Iventually, afte. two months, doctors sealed the ‘ning, but Bielunas's toot } Lill heured and the damage 1s severe Pllicil and de rpenerative \ if thi were not enough, Bielunas walks with | ronounced limp and hy alte I'¢ d Pail triggered back and knee problem Mieluna ‘rr be able to return te form of hard work. His poor english highly unlkely that he will | abl to do office Ol clerical work thi We yniy Kind of ‘ mployime nt that a person with his new phy: it al disability would be capable ol performing, Bielunas will likely never be able to work again-he can even cross-oftl pizza delivery and security guard from any list of potential jobs because hi: mangled foot affects his driving and Ability to patrol a Site, LOO Bielunas's total medical and economi damapes approximated $762,000. In hi opening statement, Bielunas's lawyer pushed for a $2,500,000 damages award Which he upped to $3,328,767 in his closing. The jury returned a $2,775,000 verdict against Misty Dawn but also found Pielunas 15% ¢ OmMmparatlive ly negligent hactoring in the 15% figure and an arreed upon set olf between the partic the district pudge entered a $2,307,090 jidvment in Bielunas's favor. Misty Dawn moved fora new trial or a remittitur Which the district denied in an LiTie xplained orde) With this background in place, we turn t the lie presented on appeal highhehting turther facts when needed to put Mi ty Dawn: claim Into propel pective lvidentiary | ue: Misty Dawn contend: that the district judge erred in admitting plaints ¢ x hibit 2 and Lawson Bronson’: expert testimony. Neither claim has traction Plaintiff's exhibit 32 Phe protes ted exhibit 1s a : taged photo (apparently taken by a defense expert) of a deckhand holding a wire and s idling along inine-inch hatch led pe as the SEA WA'TTCHE R's crew frequently would Visty Dawn argues here, as it did below that the exhibit is irrelevant because lsieclunas was injured while standing on the moving hatch cover-not while traveling along the hatch ledge holding a wire. This argument is easily disposed of \ relevancy-based argument 1s usually a » sell. The definition of relevance 1: quite expansive: relevant evidence 1: evidence having any tendency to make thie Kistence of any fact that 1s of COTS equence mpoOore O} les: probable Ser Fed Rolevid. 40] | mphasi added). To be relevant, the evidence need not definitively resolve a key issue in the case yy United States v. Rivera Calderon Mosd 78%, 96-97 Cist Cir.Z009), cert demied, 130 5.Ct. 1107 (2010)-1t need only move the inquiry forward to some degree ee 2 Jack B. Weinstein & Margarct A Berger, Weinstein's Federal lividence & 1() ] O42] |b] (Jo eph M. Mecl.aughlin ed 2d ed.2010). Because this is a quintessential judgment call, see Moral Keheiano \ Rtullan, 378 F.3d 42. 57 Ust Coir.2004). we rive trial yudge considerable leeway In ae Ming whethe the contested evidence satistfie thi not too difficult-to-meet standard reversing only on a showing of abuse ol discretion, see, e.v., United States \v pepulveda, 15 3d 1161, 1194 Csi Cur. 1993) Relevancy is not assessed in a vacuumeit is gauged “in light of the underlying ubstantive law see Koy v. The Austin Cio., 194 F.3d 840, $43 C/th Cir. 1999) here, Jones Act negligence and ship unseaworthiness. A Jones Act shipowne) must see “to the safety of the crew Koehler \ Presque Isle Transp CoO ] 1 | K.2d 490, 491 (2d Cir.1944) Crank, J.). A crew member's burden of proving causation i: “featherweight, meaning liability exists if the shipowner' “neglige nee contributed even in the shghtest” to the injury. lerrara v. A. & \ I): hing Inc., 99 FLSd 449, 4538 Cst Cir. 1996) (quotation marks omitted). Also “a § hipowner must keep the ship its de | : passaveway equipment, etvce.-in a eaworthy condition and must use sate work methods, too. See id. And a hipowner 1s responsible tor unseawortlhiness-imduced myuries even if not negligent. See id Ifa picture speaks a thousand words, thi one spoke plenty, giving context so the yury could better understand the parti actions. Again, the photo showed a seaman inching his way along a tiny hatch with no guardrails while lugging a wire-an unacceptable practice Bielunas' expert said, which Misty Dawn turned a blind eye to and which highlhghted Misty Dawn's cavaher attitude toward satety The photo also showed a ship with blocked walkways, which further bolstered bielunas's theory that Misty Dawn failed LO Pron ide Aa s ate deck for work Or) the high eas. Misty Dawn talked a good game about how crew safety was a top concern but the photo suggested otherwise. Seen in this light, then, the photo tended to make Misty Dawn's negligence and the hip: unseaworthines: more probable SE. E ge nerally DeCnoia \ LJnited States fine: Co., 304 F.2d 421, 423 (2d Cir. 1962) (holding that a cluttered deck constitute Jones Act neglgence and vessel unseaworthiness); Bonnewell v. United ates, 1/0 F.2d 411, 412-13 Ath Cir. 1948) Gsame)-which is all the liberal relevancy standard requires, see, e.g lacobucc: v. Boulter, 193 I’.3d 14, 20 (1st Cir. 1999). Consequently, the district judge did not abuse his broad discretion in admitting plaintiff's exhibit 32 bronson's testimony Also sailing wide of the mark is Misty Dawn's claim that the district judge stumbled in admitting Bronson‘ testimony about the means of traversing the deck, the danger of obstructing the walkway: and othe. safety problem: On the SKA WATCHER. Misty Dawn eall: this testimony irrelevant and says 1t: admission atfected the verdict (Misty Dawn does not contest Bronson’: expert credentials)-which means we apply the abuse-of-discretion standard. See, e.g Pages Ramirez Vv hteamire yf (7,0onzalez OUD Kk oSd 109, 115-16 Uist Cir.2010). Again that standard 1s hard to satisfy, and Misty Dawn cannot satis fy it here bronson's testimony discussing the meaning and significance of the staged photo, the dangers posed by the open hatch covers and the missing conveyo) belt handrails. ete.-went to matters of consequence: did Misty Dawn provide fielunas with a safe work place, and wa: the Sk A WATCHER seaworthy? Misty Dawn protests that Bielaunas was not hurt While sidling along the hatch ledge Ca Misty Dawn-accepted practice that Bronson condemned), that only one cove was open when tragedy struck, and that the missing handrails played no part in the mishap Ggnoring that Misty Dawn had faulted Bielunas for not standing on the conveyor belt during the hateh-closing episode, a ridiculously unsafe suggestion Bronson said, given the lack of handrails) tut this evidence gave the jury a proper frame of reference for asses: 1nhy the parties’ competing Claims, so itis relevant pee Kaipin v. Kelly, 184 I'.3d 67, &1 Cist Cir. 1999). Misty Dawn could and did fight tooth and nail to undermine the evidence' meaning. But once relevancy ts found complaints of the sort. Misty Dawn pursues go to the weight, not the admissibility, of Bronson's testimony UJnited States v. Schultz, : 416 (2d Cir.2003); United ¢ Diaz, 878 F.2d GOS, 615 (2d Cir. 1989). The upshot of all this is that we do not see anything close to an abuse of discretion here The New ‘Trial/Remittitur |: Pra ats post trial motion, Misty Dawn blasted Bielunas's counsel! for suge damage award in his opening : ($2,500,000) and closing argument 328,767), saying counsel's Comment: uaifairly influenced the jury and entitled it toa new trial, Misty Dawn also contended that the jury's ultimate award ($2,775,000, constituting roughly $2,000,000 in non-economic damage whichis the crux of the matter) was simply too large to stand. The district judge denied the motion without comment so we have two choice remand fot clarification or address the issue head-on Me reasonable byea: Ist upporting thie orde} made maniest on the record “ United States v. Podolsky, 158 F.3d 12, 16 Cst Cir. 1998); see also generally Presley \ | nited hotate: Posta Nerv mp oe | if / 173 (2d Cir.2003) (noting that “IM hile i written explanation of a district court's basis for denying la new-trial motion] ij certainly preferable as an aid to appellate review, a Separate written opinion is not necessarily required when a district court rebuff: the motion). We choose option AS this instance upyesting specilic damage amount Misty Dawn did not object to the pecilic-damage-award comme Mielunass Counsel's openimy sti and closing summation. Kather, it first urfaced this issue in its new-trial motion Phatas still an Unpreserve d challenge however, So our review 1s limited to a earch for plain error. United St: Brandao, 539 I 8d 44 accord springer v. Henry 183 (3d Cir. 2006) Plain Grror is one hard test to meet particularly in civil tigation. See Smith Kmart Corp 177 3d 19 1999). Plain error is (1) error which (2) so clear that a trial judge should act even without an objection and which G3) aifect: the appellant’ substantial rights-on top of that, even if the appellant make this reé quire d showing, w need not mtervene unless the error al: semously impugns the “lairne or public reputation of judicial proceedings. United States v. Roy 30 (ist Cir. 2007) (quotation omitted); see also Smith, 177 I at 25; Nat'l Union ire Ins. Co. of Pittsburgh, PA v. West Lake Acad., 54% hid &, 22 (Uist Cir .2008) Consequently Misty Dawn faces a st« ep chimb nearing YO depree ultimately, that slope 4 mMnsurmountabl Misty Dawn cits no it banning lawyers from sugey damage number to the jury stead it ays that federal courts tend to let counse make unitool- time arguments durimny Winination (e.g., a luwyes tells the ju plaintiffs pain is worth A dollars pei month, o1 ar and then multiphe plaintiff's life expectancy to get a lump-sum figure). Bielunas's lawyer did proposing a number and MWe a proce through which the puury could reach it.4 ome courts permit unit-ol-time arguments, si » 1ECAaN he matter to thi trial judge's discretion, and some ban thi practice outright-though most court particularly federal court into the first two camps. See generally Mileski v Long Island IMR 10., 499 F.2d 1169, J173 n. 2, n. 3, n. 4 (2d Cir.1974) (collecting federal and state cases); Giant ood Inc. v. Satterfield, 603 A 679-80 (Mad.Crt per App 1992) (same) this Court, however. We forbid counse from asking jurors to consider the amount ofa party's ad damnum in crafting a damage aw ard, see Davi: Browning-kerris Indu: Ine t) > / bradle« New Iengvland, Ine mn. Le : Deand we h ited appro mvly a case outside thi qircuit for thre po rnt that lawyer Ci Late in Stuumimation the number thre pUTOr hould award IO} pain and uffering. Hee Davi BO } Ud at (highhehting Waldorf mehuta 90) | (23 Cd Cir. 1990)). Building on thy foundation, we held ip an unpubl Opinion that Davi preclude counsel tro. requesting a paln and ulleriny dollar amount in closing. Kimberly f Mat Hitchcock Mem. Ho WS Hhitehecoch Clinics, Inc., No. 93-1488, 1993 W 198O2ZG, at *9-10 Cist Cir. De (unpublished). Consistent with thi line of case district pudges in this circuit have: LOpype qd lawye) Wom doing just that ee Wilson, 250 F.8d at 23 n. 25 ee al Pe rh rally Budet-Correa \ { nited Parcel} mery S22, I Hupp 2a 139. 141-4 (D.PR.2004) (discussing and applyi Davis and the like). Con equently measured by Ou! precede ril We CON that the district pudve here made mistake, and that the mistake 1s obvjou , enough But, again plain error require more the mistake must al » bye pore percha ma ense that there J a rensonabt probability (not WuaISU a trie (ore tical po ibility) that it affected the result. and the result must be unjust, too. See Unite Leate \ Viareu fou 3.71 ata, 104 (2O 10) (+f al QO United State Padilla 115 8d 21), 225 CUst Cir. 2005) (Boudin ().J., concurring) (en bane). This is where Viisty Dawn gets tripped up ie) Lartel we are not Convinced that thal WAS a Palle cChanviny crrot ()] [Jnited States v. Taylor, 54 I. 3d 967. 9% (Ist Cir. Lodo) (stre Ing that the plaincerror doctrine LOCcuse (3) blockbusterl ]” errors) (quotation ma) omitted). We question whether Misty Dawn can show that it 1s reasonably probable as Oppo ed to merely po sible-that the jury would have tixed different damage figure absent the unit-of-time breakdown. That the jul) found Bielunas 15% comparatively neghpent as opposed to the 5% his lawye» had argued lor suggest: that the jury did not blindly adopt COUNSE] analysi sul A) ¢ need not dwell on thi: ] Lif Pee Johnson v. United State vs Oe Be. 1] 169 (1997) skipping over the third component of the plam-cerror test and ce ( hdany Live Caist (oT) tye fourth pron r) } iyuimMent affected the outcome myustice her @ Oub lias iit ed of his livelihood (det into below) “ard is intoler: nmeede (| and bLabemenyt ana argcuine not evidence and that the veraict reached on the ( hdence alone COUTTS not object o mstruction on the unit-o delhberating 1 ¢ a bit, the yr if Bieluna MM rcou upgested award amount oning used ich them attorne mind the jurors that urgument Ot ¢ hence in the case and that lo decid the matter “on their o idge apreed and told the jur' r presume that you are referring ylaiptiff counsel's arvument to laid out I TTC Tilo qe iit toate | i pst You are remembet \ ‘ the evidence w: What coun Wi end WOrINE to remind you ol what the eviden md put his wnpterpretation betore hy could con baer il LO thet Ye member the « Lructions rot claim \ Robin Ol) } PAR Owe. tain error 1s not tandard, United VAZQUEZ Molina Cair.2004), vacated on other vr U.S. 946 (2005), and nghtfully 4 parties from rolling the dice on a erdict and then raising problem appeal that could have been easily Witha timely objection LJnited State Jacquillon ) (Wisdom dii ( ra i } Lil ( Sill t(j nen 3 i 4 i I ul } | It id { { ii { { lit ‘ ii] 4)! | a 4) 7 Asé 1) 1 >¢ A | ; ‘ YV ilit i ‘ i i} in hot, Misty Daw C2 PCCOMNOT f dan i CaW Mp) ciyire OnAabh high I | udre 10! not ordering VO se thangs differen nye ie Vu dama mito al thie jun Hy -CONSEeEqGCuUeN din extraordinal circ eto Line pill C(ie¢Ccl I I) Dia Palau, 463 } qd (JOO fiat particular] on Lrict pur pre WhO a\ { Iden pla Ol retu ard. ld it oteppiny that ruiiny to? Pil ( Of] 1, revel i only ii the de ie Wert burden Of pre ted award } 14) | ( noch ’ 10 the coy} ( xr so Ingh that it woulda mustice % permit 1 to Sti hn mart omitted). This 1 Vill NOL Jeutl nadan i £7 ¢ Cause A think It to Fe y¢ ii mdi. | ij) AV if r 4 i itv ! damarpe that could be ba ed upon the evidence betfore the jury . Casillas- Diaz 1G | ia altos (quotation marks omitted) here is no mathematical formula fon determining the monetary equivalent of non CCONnOMIC yuri pee, c.v., lLimom UJnited States, 579 F.3d 79, 105 Cst Cor.ZO09). But the district pudge told the puro. Without objection, that they cou] rany physical, mental, o1 emotional pain Bielunas has suffered, 1 ulfering, and will sulfer because of hi VyVouNnd DWamarves must be reasonable and not based on hunche the judve stre ed but “no evidence of value’ is needed fo} the intanpible myumes: in translating decision into dollars, “you are not dete ring value but you hould award an amount that you feel will fully and fairly CO) prt nsate Bieluna 10! hi pra { present and future mental distr and ply: ical pain The) Lic then, 1 mescapably “lactl- bound ( Crasilla Diaz. 463 I ats. and the Pact measured under the | ra] criveria Outline qd above upport the a) Lrict yu decision not to pare gown the award Mmielhuna uffered unimaginable pain on the Sit A WA'TTCHIICK, and pain clings to Pb)d)) Lidl ,multicton hatch cover crushe his loot, pulverizing a bone, fracturing others in multiple places, and leaving the whole thing a bloodied me: ‘The doctor could not close the wound for the longest time, and they w bil mnie VC! make him fully better actually, things will only get worse \nd the injury has exacted quite a toll causing him to lose many of the thing that made his life worth living. No more vorking on a fishing boatcin facet, no mort meaningful employment at all. No more taking long hike with trends and family Jo more doing certain chores around the house No more helping neighbor with home-improvement projects. All of thi: has left him feeling powerle lost, and depre ed. He worries about his future, he lashes out at others, and lis marriage ha ulfered, too. ‘Val Inge verything Into account, we cannot say that the jyury' award 1s unconnected to the evidence CONSCIC NCE hoc} Ing, Or SO lavish that it vould offend common notions of justice if ib stands-so no remittitur 1s needed Misty Dawn makes much of the fact that Miclunas does not take pain medication md had fractured the heel on the same foot years belore aninyury that Misty Dawn's ¢ xpert suggee ted caused many of thie ime problems that Bieluna Complain about now. None ol thi changes our view of the case Arain Micluna { Ti r f | () K I ‘ ( Hockis | 199Q) the plamtillt a oyniypurr Prom inhatie . | 4 i} ttifitdl pteila vv if} it¢ ral { ii} bitch) 11>) I ai rl it] ' 1 dhe i) i (| 1] {} 1) Til | | | 1) I ’ 11) hic] | 'e potadd } ii] Pmanul; J { Ht) pail ( | HoStahi ‘ F : | ! } | } dil y pore pila {i 4 I il i } ! ] alety equipment" Id. at 96-97. The burst substantial cenaint y rsed the ordel Propet Pyistmet held that the fandard was met and reve sing the « Omplainet thatthe sub MSH) fantial certaint' lt bears emphasis landard apple where there i ubstantial rlainty of either injury or death is added). bhus the been appr gin lurner, /54 ( ( ¢ Paplha ibstantial ce rlamty test ha ing a non-fatal injury, Cunningham; 2d at 259) (ankk byury), a lisher: burnes ( LIVOLYV Makeriman, YO! Ivinge fatality i} a Ca biive i j be Phe Dunk relr on McClanahan v. State, « ' 95 ad | ¢ ZAM) S ) In that case the mulls wer empl yees ol the lorida Justice. They worked tn Department of Juvenile detention center which had been built } Crake the carly 1990: Phey alleged that there had pence im the desipn and Construction of Was Contaminated by i levels ol moisture, nuldew, and mold it J/O4. The plamull alleped r piratory W ronyptul (it alh 8) pire anna) Ube mployer phe exact nature of the contamiunatror 1 ¢ tcl 1 mist Were nol pelled out 1rd Chae lhe Second Distnact concluded that thr ( miOons AMounted to Claims Of me Plipe al ict and that th sostantial Ccrtaimtly test had tL bee a bhie pi i dilles nificant! bine Clay as nol _ULTI alfida biditl iy ) KCEPCcl body on the day of the mcidcent hon wa grab the plamltlf's fingers, resulting ina strugpl in Which the plaintiff's arm was severed at Ue clobow. The Second District upheld the workei Compensation iminunity, based on the tact that fgusch Gardens had a Pape 1 | (rarninyp program in pla Cc Wh WwW: beleved to ty adequat lo addr WOrKID with ston Whaler, Ine 1997), which da respiratory injury. The Walks cast as decided in 1997 and was based squarely On iw Supreme Courts decision in bisher. The hiorida Supreme Court receded from lishes 2000. Turner. The legal basis of Wilk undermined Phe bank also maintains that the expert affidavit Of lar. Robbin as lepally insulficient. Thi Objection in the trial Court was that the affidavit as lacking in personal knowledpe and did not attach the documents to which the doctor d. The |e pal authority cited by the bank »X Iransportation, Inc. v. Pasco County é¢ OF de ¥, / 9 (I 1a 2a | »¢ A 199 BP i IL dial emmvolved alfidavits submitted by tact inesses Uryipy to establish whether Construction had >< Puil Qt) a rainlroad Cit) Ol a parucular date. The alfidavitin this ca the alliday fan ex t witness. |The bank I provid dd ati iuithmority be thi pre that the allidavitis insufficient the alfidavit ot an expert with rave £2 bor the lated reason there are disputed 1 Lie Ol material fact and summary pudepment should hot hia bcen pranted. We reverse th LaydaEbhaa Land remand for lurther procecdin --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2138%3A4. Public record. Not legal advice.