author: BERTELSMAN, District Judge.

text:
    William ANDERSON, et al., Plaintiffs, v. BLACK & DECKER (U.S.), INC., Defendant.
    Civ. A. No. 83-113.
    United States District Court, E.D. Kentucky, Covington Division.
    Nov. 28, 1984.

      Nick Benson, Walton, Ky., for plaintiffs.
    R. David Clark, Clark, Ward, Stuart & Hopgood, Lexington, Ky., for defendant.
   OPINION

BERTELSMAN, District Judge.

This products liability case presents the court with an important issue of first impression in Kentucky products law: whether the decision of the Supreme Court of Kentucky in Hilen v. Hays, 673 S.W.2d 713 (Ky.1984), adopting comparative negligence for Kentucky, applies to products liability cases in which the cause of action arises after the effective date of the Kentucky Products Liability Act, KRS 411.300, et seq.

The case is before the court on the parties’ pretrial requests for conflicting instructions, the plaintiff seeking a comparative negligence instruction and the defendant requesting an instruction that contributory negligence, if established, is a complete bar. The facts are simply stated.

This is a personal injury, products liability action. In his complaint filed April 6, 1983, plaintiff William Anderson claims that his left forearm was cut severely on the base of a 10 inch radial arm saw manufactured and distributed by defendant Black & Decker. He alleges defective design, failure of adequate warnings, breach of implied warranty that the saw was fit for its intended use, and a lack of knowledge on his part of any defect in the product.

This case was originally filed in Boone Circuit Court. The case was removed to this court by defendant. In its answer defendant asserted the affirmative defense of plaintiff’s contributory negligence.

Kentucky enacted its Product Liability Act in 1978. The background of its passage will be described later. Section 411.-320(3) of that Act, quoted below, provides that contributory negligence is a complete defense in product liability cases.

In Hilen v. Hays, supra, the Kentucky Supreme Court adopted comparative negligence. In its rationale, the court noted that contributory negligence as a bar to recovery in Kentucky was a court-made law which originated after the constitutional provision which adopted as the law of this state the common law of England. 673 S.W.2d at 715. It stated that “at present count thirty-two states, Puerto Rico, and the Virgin Islands have adopted comparative negligence or comparative fault by statute.” Id. at 716. It also noted that nine other states have refused to wait for their legislatures to act and have adopted comparative negligence by judicial decision. Id. at 716. It stated that in the interests of justice it deemed it appropriate to adopt comparative negligence, and abolished the doctrine of contributory negligence as a complete bar to recovery in cases governed by the common law. Id. at 717-719.

In the course of its opinion it observed as. to KRS 411.320:

“It may be arguable that the statute is capable of being construed as providing for contributory negligence as a complete defense to a products liability action (a question which remains open for a case in point), but from its background it is clear that the legislative purpose was to deal with the availability of contributory negligence as a defense in products cases and not with whether contributory negligence should result in a complete bar or proportionate recovery. ” (Emphasis Added)

Id. at 715. The court went on to adopt the pure form of comparative negligence. Id. at 720. The application of pure comparative negligence was taken directly from the Uniform Comparative Fault Act § 2. Id. The court then noted “We adopt only this part of the Uniform Comparative Fault Act which is directly applicable to this case and we express no opinion as to future applications to any portion of the Act not quoted expressly in this opinion.” The court made comparative negligence applicable to all appropriate cases tried or retried after the date of the filing of the Hilen opinion and all cases pending, including appeals, in which the issue had been preserved. Id.

The history of products law in Kentucky may be succinctly summarized. In 1965, Kentucky’s highest court- adopted the doctrine of strict liability in products cases. Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441 (Ky.1965). Generally in the application of the doctrine to various situations the Kentucky courts have followed the guidelines set forth in Restatement (Second) of Torts, § 402A, et seq. (1965). See, e.g., Post v. American Cleaning Equipment Corp., 437 S.W.2d 516 (Ky.1968) (warnings); Jones v. Hutchinson Mfg. Inc., 502 S.W.2d 66 (Ky.1973) (design defect); Cox v. General Motors Corp., 514 S.W.2d 197 (Ky.1974) (abuse of product); Embs v. Pepsi-Cola Bot. Co. of Lexington, 528 S.W.2d 703 (Ky.1975) (applicability to bystanders); Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429 (Ky.1980) (provides currently used definition of “unreasonably dangerous”). See also, C & S Fuel, Inc. v. Clark Equipment Co., 552 F.Supp. 340 (E.D.Ky.1982) (substantial alteration, warnings, design defect).

Prior to the adoption of the Product Liability Act, the Kentucky state courts had never been called upon to decide whether contributory negligence not amounting to assumption of the risk of the product defect or abuse of the product would be a bar to recovery in an action based on strict liability, although Penker Construction Co. v. Finley, 485 S.W.2d 244, 250 (Ky.1972) implied that negligence amounting to misuse of product would be a complete bar. See also, Hercules Powder Co. v. Hicks, 453 S.W.2d 583, 591 (Ky.1970) (probably involved assumption of risk).

Certainly, at the time of the passage of the Product Liability Act in 1978 it was a realistic possibility that the Kentucky Supreme Court would follow Restatement (Second) of Torts, § 402A, Comment n, which provided that the only negligence which would be á bar in product liability cases would be of the kind amounting to assumption of the risk of the hazards caused by the product defect.

This, then was the state of the law at the time of the passage of the Products Liability Act in 1978. This is extremely important in resolving the issue now before the court.

For those not familiar with it, the Kentucky Products Liability Act is set out in an appendix to this opinion. As comprehensive acts go, it is on the brief side. The intent of the legislature in enacting it is clear. Rightly or wrongly, wisely or unwisely, whether influenced by manufacturers’ and insurance lobbies or not, the clear intent of the legislature was to restrict liability in products cases. Thus, it limited the liability of retailers. KRS 411.340. It provided that alteration of product was a complete defense. KRS 411.320(1), (2). It at least attempted to provide a presumption of non-defectiveness to products in use for five years. KRS 411.310(1). And in language as clear and unambiguous language as the drafters’ skills could muster, it provided with regard to contributory negligence in products cases:

“In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.” KRS 411.320(3).

Plaintiff here now asks the court to read this statute as meaning that whatever rule of contributory negligence is currently in use in the Commonwealth shall be used in product cases. He argues that such judicial revision of the statutory language is justified on the ground that it would implement the will of the legislature. Bound by clear precepts of statutory construction in use in this Commonwealth, this court cannot agree. This court can only conclude that the Kentucky Supreme Court would follow its own precepts of statutory construction and uphold the plain meaning of the statute, despite the dictum in Hilen v. Hays, quoted above.

Justice Leibson, who was the author of the comparative negligence decision, speaking for a unanimous court, stated most emphatically as recently as ten months ago:

“We have a duty to accord words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion. Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959). A legislature making no exceptions to the positive terms of a statute is presumed to have intended to make none. Commonwealth v. Boarman, Ky.App., 610 S.W.2d 922 (1980).”

Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984).

In Commonwealth v. Boarman, 610 S.W.2d 922, 924 (Ky.App.1980), the Kentucky Court of Appeals case cited by Justice Leibson with approval, the intermediate court had stated in even stronger language:

“A legislature making no exceptions to positive terms of the statute, is presumed to have intended to make none. Hawley Coal Co. v. Bruce, 67 S.W.2d 703, 252 Ky. 455 (1934). It is to be presumed, also, that the legislature is acquainted with the law, that it has knowledge of the state of the law on subjects on which it legislates, and that it is informed of previous legislation and the construction that previous legislation has received. Button v. Hicks, 176 S.W.2d 112, 296 Ky. 163, 150 A.L.R. 779 (1943).”

See also, Manning v. Kentucky Bd. of Dentistry, 657 S.W.2d 584 (Ky.App.1984).

These cases were adhering to the plain meaning rule, which is well summarized in a standard work on statutory construction:

“One who contends that a provision of an act must not be applied according to the natural or customary purport of its language must show either that some other section of the act expands or restricts its meaning, that the provision itself is repugnant to the general purview of the act, or that the act considered in pari materia with other acts, or with the legislative history of the subject matter, imports a different meaning. If the language is plain, unambiguous and uncontrolled by other parts of the act or.other acts upon the same subject the court cannot give it a different meaning.” Sutherland, 4th Ed., Statutory Construction, § 46.01. (Emphasis Added). .

None of these factors exists here. Under the plain meaning rule statutes ordinarily apply to unforeseen developments unless such application would lead to an absurd result. Id. § 49.02.

It cannot be said that having contributory negligence as a complete bar in product cases, while comparative negligence is applied in other tort cases is an absurdity, whether one might prefer another view or not. An argument could certainly be made that, since a products liability defendant is saddled with the heavy burden of strict liability, the plaintiff as a quid pro quo should bear the burden of the traditional doctrine of contributory negligence. This is the statutory model and only the legislature can modify it.

Further, since the legislature is presumed to know the state of the law at the time of the enactment of a statute, this court must assume that it was aware at the time of the enactment of the Products Liability Act that the adoption of comparative negligence was being discussed in Kentucky and was even being applied in some contexts such as apportionment among joint tortfeasors. KRS 454.040. See D.D. Williamson & Co. v. Allied Chemical Co., 569 S.W.2d 672 (Ky.1978); Orr v. Coleman, 455 S.W.2d 59 (Ky.1970).

Although the axiom that the legislature is aware of judicial interpretations of statutes may sometimes be based on a legal fiction, that is probably not the case here.

The Act was advocated and opposed by personal injury lawyers, many of whom undoubtedly served in the. legislature. Therefore, the court is of the opinion that to many members of the legislature at least the later adoption of comparative negligence by the court was not an unforeseen development. Current applicability of. comparative negligence among joint tortfeasors and the possibility of its adoption in lieu of contributory negligence was discussed by Judge James Park in 1975 in a widely-read article. See Park, Comparative Negligence is Here Now?, 39 Kentucky Bench & Bar 18, 21. Justice Leibson refers to a growing trend toward comparative negligence beginning long before 1978, including the introduction of bills into “most, if not all” sessions of the General Assembly since 1968. Hilen v. Hays, 673 S.W.2d at 717. Therefore, the court believes that in 1978 the legislature had not only presumed, but actual knowledge of the emerging doctrine of comparative negligence.

Even if the court believed judicial adoption of comparative negligence in Kentucky was unforeseen, and was inclined to depart from Kentucky precedent by ignoring the plain meaning rule, it could do so only under the aegis of more faithfully implementing the legislative intent. See, K. Griffith, Judge Learned Hand and the Role of the Federal Judiciary, 165-169 (1973).

Plaintiff's attempt to trim his sails to the breezes of legislative intent founders his vessel upon a rocky lee shore, for the fact is that the undoubted intent of the legislature-in passing the Products Liability Act was to restrict liability. There is no indication in the Act, or elsewhere, that if aware of the present situation the legislature would have done other than it did.

In conclusion, the court holds that KRS 411.320(3), being clear and unambiguous and its application according to its terms not yielding an absurd result, must be applied according to its plain meaning. The defendant’s motion for an instruction that contributory negligence is a complete bar in this case, if supported by the evidence, will be granted.

IT IS SO ORDERED.

APPENDIX

PRODUCT LIABILITY ACT

411.300 Definitions

(1) As used in KRS 411.310 to 411.340, a “product liability action” shall include any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, advertising, packaging or labeling of any product.

(2) As used in KRS 411.310 to 411.340, a “plaintiff” shall mean a person asserting a claim and, if said claim is asserted on behalf of an estate, “plaintiff” shall include plaintiffs decedent.

HISTORY: 1978 S 119, § 2, eff. 6-17-78

411.310 Presumptions in product liability actions

(1) In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the subject product was not defective if the injury, death or property damage occurred either more than five (5) years after the date of sale to the first consumer or more than eight (8) years after the date of manufacture.

(2) In any product liability action, it shall be presumed, until rebutted by a preponderance of. the evidence to the contrary, that the product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured.

HISTORY: 1978 S 119, § 3, eff. 6-17-78

411.320 Circumstances under which defendant is liable

(1) In any product liability action, a manufacturer shall be liable only for the personal injury, death or property damage that would have occurred if the product had been used in its original, unaltered and unmodified condition. For the purpose of this section, product alteration or modification shall include failure to observe routine care and maintenance, but shall not include ordinary wear and tear. This section shall apply to alterations or modifications made by any person or entity, except those made in accordance with specifications or instructions furnished by the manufacturer.

(2) In any product liability action, if the plaintiff performed an unauthorized alteration or an unauthorized modification, and such alteration or modification was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.

(3) In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.

HISTORY: 1978 S 119, § 4, eff. 6-17-78

411.330 Admissibility of certain evidence

In any product liability action, evidence of any alteration, modification, improvement, repair or change in or discontinuance of the manufacture, construction, design, formula, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instruction, marketing, advertising, packaging, or labeling of a product, whether made by the defendant or any other person or entity after the date of manufacture, shall be admissible in evidence only after the same has been offered to the court in a hearing out of the presence of the jury and the court has ruled that the evidence is relevant and material.

HISTORY: 1978 S 119, § 5, eff. 6-17-78

411.340 When, wholesaler, distributor or retailer to be held liable

In any product liability action, if the manufacturer is identified and subject to the jurisdiction of the court, a wholesaler, distributor, or retailer who distributes or sells a product, upon his showing by a preponderance of the evidence that said product was sold by him in its original manufactured condition or package, or in the same condition such product was in when received by said wholesaler, distributor or retailer, shall not be liable to the plaintiff for damages arising solely from the distribution or sale of such product, unless such wholesaler, distributor or retailer, breached an express warranty or knew or should have known at the time of distribution or sale of such product that the product was in a defective condition, unreasonably dangerous to the user or consumer.

HISTORY: 1978 S -119, § 6, eff. 6-17-78

411.350 Short title

KRS 411.300 to 411.340 shall be known as the “Product Liability Act of Kentucky.”

HISTORY: 1978 S 119, § 1, eff. 6-17-78

      . This court has jurisdiction by diversity of citizenship. 28 U.S.C. § 1332.

      . Plaintiff relies on Lewis v. Inland Steel Co., — S.W. - No. 83-CA-2345-MR (Ky.App. October 12, 1984), which applied comparative negligence in a products case, but the accident in that case occurred prior to the 1978 Kentucky Product Liability Act, which, therefore, was not applicable.

      . What this statute adds to the ordinary burden of proof is not clear.

      . In this diversity case, of course we must apply state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).


source: Caselaw Access Project

author: CARRIGAN, District Judge.

license: Public Domain

text:
    Joe E. GARCIA, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant.
    Civ. A. 82-C-1260.
    United States District Court, D. Colorado.
    Nov. 29, 1984.
    Douglas John Traeger, Denver, Colo., Norman Perl, Michael L. Weiner, Minneapolis, Minn., for plaintiff.
    John L. Pilón, Burlington Northern Railroad Co., Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Plaintiff Joe E. Garcia has moved for an award of prejudgment interest following a jury verdict and judgment entered in his favor on February 24, 1984. Defendant Burlington Northern Railroad Company opposes this motion. The parties have briefed the issues thoroughly and oral argument would not assist in resolving them.

On July 14, 1982, Garcia was seriously injured while working on the defendant’s tracks near Wheatland, Wyoming. As a result, his left leg was amputated. He sued for damages under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51, et seq., (1982), and a jury returned a verdict in his favor for $2,000,000.

Plaintiff now claims that he is entitled to prejudgment interest. Defendant responds that the governing statute in cases arising under federal law does not allow prejudgment interest. The statute provides,

“Interest shall be allowed on any money judgment in a civil case recovered in a district court____ Such interest shall be calculated from the date of the entry of judgment____”

28 U.S.C. § 1961 (1982). Burlington Northern seeks a strict construction of § 1961 that would preclude awarding prejudgment interest.

Federal courts may exercise equitable powers to grant prejudgment interest in certain cases arising under federal law. Rodgers v. United States, 332 U.S. 371, 68 S.Ct. 5, 92 L.Ed. 3 (1947). Absent an unequivocal statutory prohibition, a trial court may award prejudgment interest where that action would promote the congressional purposes in adopting the legislation giving rise to the claim. Id. at 373, 68 S.Ct. at 6. In Rodgers, the court reviewed the purposes of penalties imposed under the Agricultural Adjustment Act of 1938, 7 U.S.C. § 1281 et seq., and concluded that prejudgment interest was not appropriate.

The Tenth Circuit, in Casto v. Arkansas-Louisiana Gas Co., 562 F.2d 622, 624 (10th Cir.1977), discussed applicability of § 1961 in diversity cases. Although the court there decided to apply state law governing interest, it noted obiter dicta that § 1961 if applicable, would not have barred prejudgment interest.

Bricklayers’ Pension Trust Fund v. Taiariol, 671 F.2d 988 (6th Cir.1982), involved a damages award to employees under the Labor Management Relations Act of 1947 and the Employee Retirement Income Security Act of 1974 for their employer’s failure to deposit sufficient funds into employee trust funds. Relying on a narrow reading of § 1961, the district court denied the plaintiffs’ request for prejudgment interest. The Sixth Circuit disagreed, holding that “Section 1961 does not by its silence bar the awarding of prejudgment interest in cases whose jurisdiction is grounded in the resolution of a federal question.” Id. at 989 (citing many cases). The opinion declared that “traditional equitable principles would govern the award of such compensation.” Id. See also Illinois Cent. R. Co. v. Texas Eastern Trans. Corp., 551 F.2d 943 (5th Cir.1977); Louisiana & Arkansas Railway Co. v. Export Drum Co., 359 F.2d 311, 317 (5th Cir.1966); Marshall v. Burger King Corp., 509 F.Supp. 353, 356 (E.D.N.Y.1981); Cris-Craft Industries, Inc. v. Piper Aircraft Corp., 384 F.Supp. 507, 526 (S.D.N.Y.1974).

Plaintiffs in Olsen v. Shell Oil Co., 708 F.2d 976 (5th Cir.1983), sued under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356 (1982), for injuries and deaths that occurred on a drilling platform ninety miles off the coast of Louisiana. Under the OCSLA, federal law governs fixed structures erected on the outer continental shelf. The OCSLA declares that where federal law is incomplete, the law of the state within which the structure would be located if the state’s boundaries were extended seaward is to be applied as federal law. See 43 U.S.C. § 1333(a)(2)(A) (1982). The court reviewed several cases applying § 1961 to OCSLA cases and adopted the “better view” that § 1961 does not prevent a trial judge from granting prejudgment interest where such an award is justified by “other principles of law.”

In the oft cited case of Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 592-595 (2d Cir.1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526 (1962), the Second Circuit recognized that § 1961 does not foreclose prejudgment interest on personal injury awards. Claimants there brought an admiralty action under the Death on the High Seas Act, 46 U.S.C. § 761 et seq., seeking damages for personal injuries sustained when a steamship capsized. The court rejected the “hoary distinction” between liquidated and unliquidated damages and found strong policy considerations supporting a prejudgment interest award. First, the court recognized that the purpose of the Death on the High Seas Act, like that of the FELA, was to provide full compensation to injured parties. Second, the court rioted that claimants could not be fully compensated without prejudgment interest. Finally, the court sought to deter tactical úse of delay by defendants.

Examination of the FELA’s legislative history suggests that awarding prejudgment interest in FELA cases would promote the beneficent purposes which gave rise to the Act. Congress enacted the FELA to broaden and clarify the law applicable to parties injured while working for railroads, and to abrogate the defenses of assumption of risk and contributory negligence in such cases. See Senate Judiciary Committee, Amending the Employers’ Liability Act, S.Rep. No. 661, 76th Cong., 1st Sess. 2 (1939). In Kernan v. American Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 398, 2 L.Ed.2d 382 (1958), the United States Supreme Court explained, “[I]t is clear that the general congressional intent was to provide liberal recovery for injured workers____”

Apparently Congress intended the FELA to replace and expand the state law rights of injured railroad employees. The Senate Judiciary Committee reported on an early version of the Act:

“It is manifest from a consideration of the reports, both of the Senate and House committees, when the measure was pending before these bodies prior to its enactment, that the purpose of the statute was to extend and enlarge the remedy provided by law to employees engaged in interstate commerce in cases of death or injury to such employees while engaged in such service. No purpose or intent on the part of Congress can be found to limit or to take away from such an employee any right theretofore existing by which such employees were entitled to a more extended remedy than that conferred upon them by the Act.”

Senate Judiciary Committee, Report on the 1910 Amendments to the Federal Employers’ Liability Act, 45 Cong.Rec. 4048 (1910) (quoted in Kozar v. Chesapeake and Ohio Railway Company, 449 F.2d 1238, 1240 n. 1 (6th Cir.1971)).

Courts applying the FELA have recognized the underlying congressional intent by granting full recovery, liberally interpreting the Act to allow damages for medical and hospital expenses, lost earnings, loss of earning capacity, pain and suffering, fear and anxiety, and aggravation of prior conditions.

In addition to the non-FELA federal question cases allowing prejudgment interest, many states allow such awards. Several states have statutes granting prejudgment interest in personal injury cases as a matter of right. Other states allow prejudgment interest at the court’s discretion.

The legislative history and subsequent judicial applications of the FELA demonstrate that granting prejudgment interest in FELA cases would promote the policies underlying the Act. Under Rodgers v. United States, supra, and the above cited cases allowing prejudgment interest, it seems clear that the law allows this court to exercise equitable powers in the present case to grant prejudgment interest if that course is the one most consistent with justice and with Congress’ intent in adopting the FELA.

The cases that have denied prejudgment interest on FELA judgments have analyzed the issue in two ways. Some have relied on the outdated argument that prejudgment interest may only be allowed on liquidated damages. They have reasoned that because personal injury damages are not “liquidated” until the jury returns its verdict, prejudgment interest is not appropriate. See, e.g., Chicago, M., St. P. & P. R. Co. v. Busby, 41 F.2d 617, 619 (9th Cir.1930).

Other cases have held that § 1961’s silence with respect to prejudgment interest precludes such awards. See, e.g., Louisiana & Arkansas Ry. Co. v. Pratt, 142 F.2d 847, 848 (5th Cir.1944). More recent decisions merely have followed earlier precedents without critical analysis or discussion of the issues in light of modern trends in the law. See, e.g., Faulkenberry v. Louisiana & Arkansas Ry. Co., 551 F.2d 650, 651 (5th Cir.1977).

A 1968 opinion suggested that, “The case authorities [disallowing prejudgment interest] are somewhat ancient and ... at least a plausible argument could be made for the proposition that prejudgment interest could be awarded in FELA cases in the exercise of sound discretion by the trial court.” Gilroy v. Erie-Lackawanna Railroad Company, 44 F.R.D. 3, 4-5 (S.D.N.Y.1968) (bracketed words added) (citing Moore-McCormack Lines, Inc. v. Richardson, supra.)

I conclude that the cases that have relied on a narrow reading of § 1961 to deny prejudgment interest are no longer authoritative. Moreover, the cases that have relied on the distinction between liquidated and unliquidated damages are devoid of any persuasive rationale.

The United States Supreme Court recently rejected the distinction between liquidated and unliquidated damages in General Motors Corp. v. Devex Corp., 461 U.S. 648, 103 S.Ct. 2058, 2063, 76 L.Ed.2d 211 (1983). That case held a claim for prejudgment interest in a patent infringement case was not barred by the common law rule allowing interest only from the date on which damages become liquidated. The Court explained:

“The traditional view, which treated prejudgment interest as a penalty awarded on the basis of the defendant’s conduct, has long been criticized on the ground that prejudgment interest represents ‘delay damages’ and should be awarded as a component of full compensation. See D. Dobbs, Law of Remedies § 3.5, at 174; C. McCormick, Law of Damages § 51, at 206-211 (1935); ‘Prejudgment Interest: An Element of Damages Not To Be Overlooked,’ 8 Cumberland L.Rev. 521 (1977). A rule denying prejudgment interest not only under-compensates the patent owner but may also grant a windfall to the infringer and create an incentive to prolong litigation. There is no reason why an infringer should stand in a better position than a party who agrees to pay a royalty and then fails to pay because of financial difficulties.”

Id., 103 S.Ct. at 2063 n. 10. See also Funkhouser v. J.B. Preston Co., 290 U.S. 163, 168, 54 S.Ct. 134, 136, 78 L.Ed. 243 (1933).

In Moore-McCormack Lines, Inc. v. Richardson, supra, the Second Circuit examined the questionable theoretical underpinnings supporting the distinction between liquidated and unliquidated damages:

“Interest was never refused on unliquidated claims from any doubt that some financial loss is actually suffered from delay in receiving money. Theoretically, refusal was based on the concept that interest was payable only on a “debt” and that no debt could be due until the liability had been fixed. See Frazer v. Bigelow Carpet Co., 1886, 141 Mass. 126, 4 N.E. 620. McCormick traces the distinction to a survival of the medieval distaste for interest as ‘usurious.’ McCormick, Damages, §§ 51, 55 (1935 Ed.). A further explanation sometimes advanced is that a debtor should not be burdened with pre-judgment interest upon an obligation so nebulous that he must necessarily look to the courts to fix its scope. Similar considerations would, however, seem to support the disallowance of pre-judgment interest where liability is in doubt as to a ‘liquidated’ claim. But since the courts have not seen fit to deny pre-judgment interest in the latter case, we see no reason why they should not grant it in the former.”

Id. at 594. See also Olsen v. Shell Oil Co., supra, where the Fifth Circuit upheld prejudgment interest on a personal injury judgment. Clearly, the better reasoned cases are those which have abandoned the distinction between liquidated and unliquidated claims.

Unpersuaded by earlier FELA decisions denying prejudgment interest, I turn to the strong policy considerations suggesting that such awards are appropriate. Two such considerations are paramount: fairness and efficiency.

Granting prejudgment interest to prevailing FELA plaintiffs would promote fairness in two ways. First, full compensation to an injured worker requires compensation from the date of the injury. Following an injury, a worker incurs expenses immediately. Medical bills, loss of earnings, pain requiring medication, and the expense of supporting one’s self and family do not wait patiently for the date judgment is entered and then present themselves. Rather, a seriously injured worker faces substantial, extraordinary expenses from the day of the injury, and often must borrow money at interest to pay them. Courts cannot go about the practical business of tailoring remedies to fit wrongs as if blindly oblivious to the obvious. In fact courts have become part of the problem as our burgeoning caseloads and resulting delays have prolonged the privations and heaped up the hardships inflicted on injured workers and their families.

Second, as the Alaska Supreme Court aptly pointed out in State v. Phillips, 470 P.2d 266, 274 (Alaska 1970), an injured worker’s damages should not depend on the mere fortuity of when the case goes to trial. Two railroad employees suffering identical injuries on the same day could recover significantly different actual economic benefits even if their respective jury verdicts were for identical dollar amounts, where, by some not uncommon happenstance, one case might get to trial a year, or several years, ahead of the other. One need not be an econometrician to know that a sum of money in hand today is worth more than the right to receive the same sum a year, or a few years, later. A society governed by the rule of law, and priding itself on equally applying the same rules to all, should not tolerate the rule of happenstance in setting the actual compensation for victims of railway accidents.

Equally compelling considerations of judicial efficiency support prejudgment interest awards. Chronic court case overloads and delay are epidemic. Depriving an injured worker of the right to interest on the debt created with his injury, merely encourages defendants to put off the day of judgment as long as possible. Even where liability is clear, and all anticipate settlement without trial, defendants are encouraged to prolong pretrial litigation. They have nothing to lose. With prime interest rates that at times have exceeded 20%, a few years of delay, while investing funds that rightfully belong to the injured worker, can largely offset any actual economic impact to the defendant. Incentives to delay breed the paper wars that so waste and wear down judges, lawyers and litigants. Courthouse steps settlements, after unnecessary expenditure of time and resources, should not be encouraged by a rule governing interest.

Even in disputed liability cases, where trial may be inevitable, denying prejudgment interest merely teaches defendants to postpone trial as long as possible. Courts already inundated by a tide of tactical motions ought to minimize incentives to file those motions. They cause delay not only in the case where they are filed, but in other cases in that court, for a judge already overcommitted can find time to consider such motions only by taking it from other cases. A rule which tempts litigants to seek delay by granting them the certain temporary investment income of funds in dispute undermines sound judicial administration.

In summary, allowing prejudgment interest would promote the policies underlying the FELA. Such awards are not precluded by either § 1961 or the cases relying on the antique distinction between liquidated and unliquidated damages. In the interest of fairness and efficiency, therefore, prejudgment interest should be allowed in FELA cases.

Accordingly,

IT IS ORDERED that the plaintiffs judgment be amended to include prejudgment interest from the date of the injury at the rate set by federal law for interest on judgments.

      . These cases, including Bricklayers, all involved prejudgment interest on liquidated damages. Arguably, they are unlike the present case involving unliquidated damages for personal injuries. For reasons more fully developed later in this opinion, the distinction between liquidated and unliquidated damages is not helpful in resolving the present controversy. Moreover, several courts have granted prejudgment interest in personal injury cases arising under federal law. See, e.g., Olsen v. Shell Oil Co., infra; Moore-McCormack Lines v. Richardson, infra; Cf. General Motors Corp. v. Devex Corp., infra (United States Supreme Court granted prejudgment in-terest on unliquidated damages for patent infringement).

      . Id. at 984. Under the OCSLA, federal law incorporated Louisiana law. The court concluded, therefore, that a Louisiana statute granting prevailing personal injury plaintiffs prejudgment interest justified such an award in the plaintiffs’ OCSLA action. In the present case, the FELA does not incorporate the law of any. particular state. Nonetheless, the prevailing trend, grounded in sound equitable and policy considerations, allows prejudgment interest. See infra at note 10.

      . See also Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir.1980); Petition of the City of New York, 332 F.2d 1006 (2nd Cir.1964).

      . DeWitt v. W. Pac. R.R. Co., 719 F.2d 1448 (9th Cir.1983) (damages for continuing medical expenses awarded); Trowbridge v. Chicago & Ill. Midland Ry. Co., 131 Ill.App.2d 707, 263 N.E.2d 619 (1970).

      . Trowbridge v. Chicago & Ill. Midland Ry. Co., 263 N.E.2d 619.

      . Baker v. Baltimore & Ohio R.R. Co., 502 F.2d 638 (6th Cir.1974).

      . Sleeman v. Chesapeake & Ohio R.R. Co., 290 F.Supp. 817 (W.D.Mich.1968).

      . Hayes v. N.Y. Cent. R.R. Co., 311 F.2d 198 (2d Cir.1962).

      . Holladay v. Chicago, Burlington & Quincy R.R. Co., 255 F.Supp. 879 (S.D.Iowa 1966).

      . Alaska Stat. § 45.45.010 (1980) (10.5% interest from date damages "are due,” i.e. date cause of action accrued); Colo.Rev.Stat. § 13-21-101 (Supp.1983) (various rates of interest, some compound, and accruing from either date of cause of action or date action commenced, depending on when action filed and whether judgment appealed); La.Rev.Stat.Ann. § 13:4203 (1968) (date complaint filed in tort cases); Me.Rev.Stat.Ann. tit. 14, § 1602 (Supp.1980) (8% from date complaint filed in non-contract actions, except interest suspended if prevailing party obtains continuance of more than 30 days); Mass.Ann.Laws Ch. 231, § 6B (Michie/Law. Co-op Supp.1983) (12% for personal injury damages from date action commenced); Mich.Comp.Laws Ann. § 600.6013 (1983) (from date complaint filed, at 6% to June 1, 1980, and 12% thereafter, compounded annually); N.H.Rev.Stat.Ann. Ch. 524; 1-b (1974) (damages for personal injury or wrongful death from date of writ or petition filed); N.Y.Est.Powers & Trusts Law § 5-4.3 (McKinney 1983) (interest from date of death in wrongful death cases); Okl.Stat.Ann. tit. 12, § 727(2) (West Supp.1983) (for personal injuries, 15% from date suit commenced, except 10% against state, counties, and municipalities); P.R.Laws Ann. tit. 32, App. II, R. 44.-4(e) (1969) (interest from date complaint filed); R.I.Gen. laws § 9-21-10 (Supp.1980) (12% from date cause of action accrued; N.J.Ct.R. 4:42-11(b); (interest from later of date of filing or six months after tort).

      . See Md.Cts. and Jud.Proc.Code Ann. § 11-301 (Supp.1981) (Automobile liability claims, up to 10%, from filing of action if defendant caused unnecessary delay); S.D. Codified Laws Ann. § 21-1-13 (Supp.1981). See also Annot., 96 A.L.R.2d 1104, 1115 (1964).

      . Annot., 96 A.L.R.2d 1104 (1964); Annot., 153 A.L.R. 857 (1944).


text:
    ARMSTRONG v. SCHOOL DISTRICT OF PHILADELPHIA, et al.
    Civ. A. No. 81-3862.
    United States District Court, E.D. Pennsylvania.
    Nov. 29, 1984.

      Theodore Q. Thompson, Ambler, Pa., for plaintiff.
    Patricia A. Donovan, Philadelphia, Pa., for School Dist.
    Deborah R. Willig, Philadelphia, Pa., for PFT.
   OPINION

JOSEPH S. LORD, III, Senior District Judge.

Plaintiff filed a civil rights suit against the School District of Philadelphia, its Superintendent, the Board of Education, and her union, the Philadelphia Federation of Teachers (“PFT”). Her amended complaint accuses defendants of a continuing pattern and practice of racial discrimination and alleges causes of action based upon 42 U.S.C. §§ 1981, 1983, 1985 and 1986.

The PFT has filed a motion for judgment on the pleadings, or in the alternative, a motion for summary judgment. Since the parties refer to evidence adduced in discovery, the PFT’s motion will be treated as one for summary judgment. Fed.R.Civ.P: 12(c). Plaintiffs response to a properly supported summary judgment motion may not rest upon the allegations of her pleading. Rather, plaintiff must produce admissible evidence sufficient to create a genuine issue of material fact. Fed.R.Civ.P. 56(e).

The heart of plaintiffs accusations against the PFT is found in Counts IV, V and VI of the complaint. For the following reasons the PFT will be granted summary judgment as to those counts. .

Count IV alleges that the PFT engaged in a pattern and practice of discrimination against plaintiff and conspired with the other defendants in violation of § 1981. Specifically, plaintiff avers that the PFT: (1) failed to provide effective representation by permitting plaintiffs employer to discriminate against blacks; (2) negotiated and entered into contract provisions which had the effect of denying blacks equal opportunity for employment; (3) failed to act affirmatively to prevent plaintiffs employer from discriminating against blacks; (4) failed to process the grievances of black employees on the same basis as the grievances of whites were processed. Count VI alleges that this. purported pattern and practice of discrimination by the PFT violated §§ 1985(1) and (3), and 1986, as well as § 1981.

Count V alleges that the PFT conspired to prevent plaintiff from effectively performing her duties on the Mayor’s Commission For Women and to have her removed from said Commission. Defendants allegedly engaged in these activities because plaintiff is black and in retaliation for her actions on the Commission. Plaintiff avers that this purported conspiracy violated her rights under §§ 1981, 1983, 1985(1) and (3) and 1986.

I. Plaintiff’s Section 1981 Claims '

A cause of action in the employment context based upon § 1981 must set forth facts tending to establish that the allegedly disparate treatment suffered by plaintiff was the result of purposeful or intentional discrimination. Section 1981 “does not extend to facially neutral conduct having the consequence of burdening one race more than the other.” Croker v. Boeing Co., 662 F.2d 975, 989 (3d Cir.1981) (en banc). The criterion of purposeful or intentional discrimination cannot be satisfied by vague and conclusory allegations in the complaint unsupported by affidavits, depositions, or other admissible evidence dehors the complaint, stating the specific facts upon which claims of discrimination are based. Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir.1976).

A union’s failure to negotiate a contract to correct an employer’s discriminatory practices gives rise to a cause of action under § 1981 only if racial animus on the part of the union is specifically shown. See e.g., Goodman v. Lukens Steel Co., 580 F.Supp. 1114, 1160 (E.D.Pa.1984). In her deposition testimony plaintiff was not only unable to identify any specific contract provision which had the effect of discriminating against blacks, but also admitted that she had “no idea” whether the union negotiated and entered into the contract with the intention of discriminating against black employees.

In Trader v. Fiat Distributors, Inc., 476 F.Supp. 1194 (D.Del.1979), plaintiff brought a § 1981 suit which made allegations of discrimination by a union similar to those being made here against the PFT. The court dismissed the suit against the union due to a lack of specificity in the complaint. “Specifically, the complaint fails to identify the allegedly discriminatory [collective bargaining] agreement, ... the date of that agreement, the general contents of that agreement, or the effect that agreement exerts on plaintiffs employment opportunities ... In addition, the complaint is completely devoid of factual documentation supporting the allegations of unfair representation.” 476 F.Supp. at 1201.

It is axiomatic that a union must in all respects represent all of its members in a nondiscriminatory fashion. But a crucial element of a claim of discriminatory representation is a factual showing that in similar circumstances whites were treated differently from blacks. See e.g., Donaldson v. Taylor Products Div. of Tecumseh, 620 F.2d 155, 159 (7th Cir.1980). Although questioned extensively on the issue of actual discrimination during her deposition, plaintiff could cite no instance where a white person was treated differently than she was by the PFT.

Counts IV and VI lack the specificity necessary to maintain a § 1981 suit and discovery has totally failed to uncover the factual predicate necessary to support plaintiffs claims.

The only evidence adduced in support of the allegations in Count V is that the PFT wrote Mayor Green requesting that “representatives of labor” be appointed to the Commission. There is no evidence that the PFT’s request involved the plaintiff in any way. A fortiori, there is no evidence that any action taken by the PFT with regard to the Commission or plaintiffs position on it, was the result of intentional racial discrimination. Therefore, this § 1981 claim must also fail. See Croker, supra.

II. Plaintiffs Claims Under Sections 1988, 1985 and 1986

a. Section 1983.

Plaintiff’s § 1983 suit against the PFT must fail since any alleged discrimination by the union does not constitute the state action necessary for plaintiff to maintain a cause of action under that statute. See Jackson v. Temple Univ. of Com. Sys. of Higher Ed., 721 F.2d 931, 933 (3d Cir.1983).

b. Section 1985(3).

The essential elements of a claim under § 1985(3) are: “(1) a conspiracy by the defendants; (2) designed to deprive plaintiff of the equal protection of the laws; (3) the commission of an overt act in furtherance of that conspiracy; (4) a resultant injury to person or property or a deprivation of any right or privilege of citizens; and (5) defendant’s actions were motivated by a racial ... discriminatory animus.” Carter v. Cuyler, 415 F.Supp. 852, 857 (E.D.Pa.1976) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)).

Again, to survive a motion to dismiss, plaintiff must plead facts which support allegations of a conspiracy and of intentional discrimination. Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.) cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972). These allegations must include a description of the membership, formulation and purpose of the alleged conspiracy. Everett v. City of Chester, 391 F.Supp. 26, 28-29. (E.D.Pa.1975). Nothing in Count VI indicates how, why, or when the alleged conspiracy came into existence, the identity of its members, or the methods by which it accomplished its goals. When given the opportunity to substantiate her claim of conspiracy between the PFT and the other defendants, plaintiff could cite only her own speculation for support.

Count V is similarly deficient. Plaintiff has not averred and has adduced no evidence that she suffered “injury to person or property or a deprivation of any right or privilege of citizens” due to the conspiracy alleged in Count V. Thus, Count V’s § 1985(3) suit must also fail. See Carter, supra.

c. Sections 1985(1) and 1986.

The remaining causes of action in Count V and Count VI are equally without merit. By its terms, § 1985(1) applies only to conspiracies to interfere with officers of the United States, or those about to take such office. Plaintiff is not an officer of the United States, nor was she prevented from becoming one.

Relief under § 1986 is predicated upon plaintiffs successful averment of a cause of action under § 1985. Rogin v. Bensalem Tp., 616 F.2d 680, 696 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). Since plaintiff has failed to state a cause of action under § 1985, her § 1986 claims must also fail.

III. The Remainder Of Plaintiff’s Complaint

Although the other defendants are specifically named in the remaining counts of the complaint, the PFT is not. Even if plaintiff is given the benefit of the doubt and the remaining counts are construed, where possible, to implicate the PFT, none of them will survive the PFT’s motion for summary judgment.

Counts I and II accuse plaintiffs employer of discriminating against her due to her race in a variety of terms and conditions of employment. To the extent that these averments implicate the PFT, they are identical, in substance, to the claims alleged in Counts IV and VI. For the reasons set forth above, the PFT is entitled to summary judgment on these counts.

Count III of the complaint only concerns plaintiffs employer and the Equitable Life Assurance Society. During oral argument, plaintiff conceded that Count IVA did not concern the PFT.

Count VII alleges that the defendants violated the Fair Labor Standards Act by paying plaintiff less than white males with equivalent job responsibilities. Count IX alleges that the defendants violated state law by providing “unsworn falsification” at school board meetings regarding voluntary employee transfers. Count X alleges that plaintiffs supervisor sexually harassed her and retaliated against her for refusing his sexual advances. On their face, none of these counts specifically applies to the PFT and the plaintiff has supplied no basis for finding that the PFT was responsible for the acts complained of.

Count VIII alleges that the defendants violated the equal protection clause of the Fourteenth Amendment. This is inapplicable to the PFT, since its acts do not constitute state action. See Jackson, supra.

An appropriate order will be entered granting the PFT summary judgment as to all counts of plaintiffs complaint.

      . However, these counts do incorporate by reference previous counts which mention the PFT and also make vague allegations concerning a group of "defendants" which could include the PFT.

      . Two counts of the amended complaint are numbered IV. The second is being referred to as Count IVA.


author: CHARLES R. RICHEY, District Judge.

text:
    Darryl MORGAN, Plaintiff, v. Charles S. LINDSAY, Defendant.
    Civ. A. No. 84-2963.
    United States District Court, District of Columbia.
    Nov. 29, 1984.

      Darryl Morgan, pro se.
    Inez Smith Reid, Corp. Counsel, Metcalfe C. King, Asst. Corp. Counsel, Washington, D. C., for defendant.
   ORDER

CHARLES R. RICHEY, District Judge.

This case is before the Court on the defendant’s motion to dismiss, or in the alternative for summary judgment. Plaintiff pro se is a prisoner incarcerated in the Maximum Security Facility of Lorton Reformatory. He claims in his complaint that his due process rights have been violated by the defendant in that the plaintiff was confined to punitive segregation for a period beyond that which he was originally assessed, in violation of the D.C. Department of Corrections rules and regulations. For the reasons set forth below, the Court finds this claim to be without merit and grants the defendant’s motion to dismiss.

The plaintiff is serving a five to fifteen year sentence for two counts of burglary. His institutional record shows a history of violent behavior while in prison. On April 2, 1984, plaintiff was transferred to the Maximum Security section at Lorton from the Central Facility. This transfer was due to an assault by the plaintiff on a guard, which required fourteen stitches to the guard’s mouth. On July 14, 1984, the Disciplinary Board found the plaintiff guilty of assault and inciting a riot. The Board ordered that the plaintiff spend fourteen days in punitive segregation, pursuant to Lorton Regulation § 105.2(c), and thirty days in the adjustment unit. On July 31, 1984, while still in the Control Cells, plaintiff threw human feces, spat on and otherwise assaulted another guard. The Disciplinary Board found him guilty of assault and disrespect and ordered him confined in punitive segregation for fourteen days, again pursuant to the regulations. Finally, on September 18, 1984, plaintiff admitted to possessing contraband, and was again ordered by the Disciplinary Board to spend fourteen days in punitive segregation. Each such confinement was preceded by notice and a hearing.

The test of whether or not a prisoner’s due process rights have been violated is set forth clearly in the leading case of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Wolff requires that an inmate facing disciplinary action be given notice of the charges against him, a hearing, the opportunity to present witnesses, and a written statement of the reasons for the decision and the facts relied upon. Id. In this case, the plaintiff has admitted in his complaint that he received notice, a hearing, and a written statement as to each charge against him and the consequences thereof. Further, the Supreme Court has recently held that the “mere fact the [the state] has created a careful procedural structure to regulate the use of administrative segregation” does not create a protected liberty interest. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). There can be no protected liberty interest here, because of the plaintiffs own conduct. He alone chose by his actions to deny himself of such benefits and liberties as are available to an inmate in the general prison population. Thus, it is apparent from the start that plaintiffs claim is without merit. The defendant acted properly and with consideration for the constitutional rights of the plaintiff.

Plaintiffs claim that the Lorton Regulations were violated by the successive fourteen-day periods of punitive segregation is also without merit. The regulation at issue, § 105.2(c), applies to each offense committed. It limits the number of days an inmate may be placed in punitive segregation to fourteen days per offense. The regulations make it unmistakably clear that an inmate may not be confined for more than fourteen days for each offense. However, if the inmate, while in punitive segregation, or by the virtue of a separate offense, as is the undisputed situation here, commits another violation he is to be subject to being placed in segregation again for an additional fourteen days. To interpret the regulation otherwise would open up the prison guards to untold abuses and dangers by inmates with nothing to fear once they are already serving a fourteen-day confinement. Thus, plaintiffs claim will be dismissed.

Therefore, it is by the Court this 29th day of November, 1984, hereby

ORDERED that defendant’s motion to dismiss is granted, and it is

FURTHER ORDERED that the clerk shall remove this case from the docket of this Court.


author: RICHARD L. WILLIAMS, District Judge.

text:
    Victoria VALENTINE v. Robert STRANGE, M.D., Superintendent, N.VA.Mental Health Inst., Paul Mardelli, M.D., N.VA.M.H.I., Barbara Foglia, N.VA.M.H.I., Nora Collins, N.VA.M.H.I., Vernon Pettus, N.VA.M.H.I., Regina Sharber, N.VA.M.H.I., Barbara Ashton, N.VA.M.H.I., Robert Murphy, N.VA.M.H.I.
    Civ. A. No. 84-1037-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Nov. 30, 1984.

      Victor M. Glasberg, Alexandria, Va., for plaintiff.
    Gerald R. Walsh, Jacquelyn K. Boyden, Miles & Stockbridge, Fairfax, Va., for Strange, Mardelli, Foglia and Collins.
    Jane D. Hickey, Asst. Atty. Gen., Richmond, Va., for Pettus, Ashton and Murphy.
   MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter comes before the Court on defendants’ motion under Rule 12(b)(6) to dismiss Count 1 of the plaintiff’s complaint for failure to state a cause of action. In considering the defendants’ motion, the Court must accept the plaintiff’s allegations set out in the complaint as true. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976).

FACTS: This is a civil action for damages brought against state officials pursuant to 42 U.S.C. § 1983. On August 14, 1981, plaintiff Victoria Valentine was admitted to a private psychiatric hospital in Virginia. At the time of her entrance to that facility, Valentine was suffering from disturbed thought patterns, and she was diagnosed as having a “schizopheniform” disorder. While hospitalized, plaintiff attempted to burn her face with a lit cigarette on three occasions. After the first occasion, plaintiff’s cigarettes and lighter were taken from her, and she was permitted to smoke cigarettes only in the presence of an attendant; she was also provided medications and closely observed.

On September 12, 1981, a commitment hearing was held pursuant to Virginia law, and the judge ordered plaintiff’s involuntary commitment to Northern Virginia Mental Health Institute (NVMHI), finding that plaintiff presented an imminent danger to herself as a result of her illness. Plaintiff was committed to NVMHI immediately after the hearing on September 12, and NVMHI received a copy of her commitment papers and a copy of her psychiatric report clearly outlining the recent burning incidents upon her arrival.

Although the health care providers at NVMHI were aware of the danger which Valentine posed to herself, Valentine was still allowed to possess her cigarettes and lighter. Two days later, on September 14, plaintiff, in the presence of hospital personnel, attempted to burn herself by setting fire to her blouse with her own lighter. While her attempt was unsuccessful, the incident was recorded in Valentine’s medical records. Despite this attempt, however, the defendant health care providers took no steps to prevent the recurrence of such an incident, and plaintiff was even permitted to keep her cigarettes and lighter.

Later on the evening of the 14th, the hospital staff began to notice that plaintiff was behaving irrationally. Valentine voiced concern for her own safety and asked the staff to “watch her room.” Despite her pleas and behavior, however, defendants failed to take any precautions. At approximately 6:00. a.m. the next morning, plaintiff entered an unauthorized area and set fire to her clothing with her own lighter. The fire was put out by hospital staff, but plaintiff suffered third-degree, burns over 35% of her body. Plaintiff subsequently filed this action against various hospital personnel, alleging a violation of her constitutional rights in Count T and medical malpractice in Count 2. Defendants have moved to dismiss Count 1 for failure to state a cause of action under 42 U.S.C. § 1983.

DISCUSSION: In support of her § 1983 claim, plaintiff relies totally on the Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In that case, the Supreme Court considered the § 1983 claim of an involuntarily committed mental patient at a Pennsylvania state institution. In the course of his confinement, the plaintiff in Youngberg suffered a variety of injuries at his own hand and at the hands of others. Noting that the right to personal security constitutes an “historic liberty interest,” the Court, drawing an analogy to the Eighth Amendment right of prisoners to safe conditions, stated that “it must be unconstitutional to confine the involuntarily committed ... in unsafe conditions.” 457 U.S. at 315-316, 102 S.Ct. at 2457-2458.

While recognizing Romeo’s Fourteenth Amendment due process interest in safety, the Court stated that such an interest was not absolute. In order to determine whether a constitutionally protected liberty interest in safety has been infringed, the Supreme Court explained, a court must look to the extent or nature of the alleged lack of absolute safety and decide whether such a lack of safety violates due process. In making such a determination, a court must balance the alleged liberty interest against the relevant state interest. The Youngberg court cautioned that judicial interference with the judgment of a qualified professional and the internal operation of a state mental health facility should be minimized, and that therefore § 1983 liability should be imposed only when the health care professional’s decision was “such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” 457 U.S. at 323, 102 S.Ct. at 2462.

In the instant case, plaintiff Valentine alleges that the defendants were fully aware upon her arrival that she had recently attempted to burn herself on at least 3 separate occasions in another mental institution. Moreover, defendants had also received a copy of a judicial determination stating that the plaintiff was a danger to herself due to her mental condition. Professional judgment, not to mention common sense, probably dictated at that point that the plaintiff not be allowed to keep cigarettes and a lighter without the closest of supervision. This conclusion is reinforced by the fact that doctors at the institute where plaintiff resided immediately prior to her move to NVMHI had taken away plaintiff’s lighter and cigarettes after the first burning attempt.

The failure of the NVMHI staff to confiscate Valentine’s cigarettes and lighter upon her arrival may have only constituted simple negligence. However, just two days after her arrival, plaintiff attempted to set her clothes on fire with her own lighter in front of hospital personnel, and immediately thereafter acted irrationally and repeatedly voiced concern for her safety; the staff ignored her pleas and continued to allow plaintiff to possess the cigarettes and lighter without any supervision. In light of these additional events, all prior to the final tragic burning, this Court can only conclude that the defendants here simply failed to exercise any professional judgment. The failure of state health care professionals to take even minimal precautions in the face of imminent danger to the life of an involuntarily committed patient constitutes a violation of liberty interests protected by the Due Process Clause of the Fourteenth Amendment.

The gross nature of the alleged omissions here is even worse in view of how easily the whole incident could have been avoided. By confiscating the cigarettes, the state would have furthered a number of legitimate interests at literally no cost to taxpayers.

In holding that the plaintiff has alleged a cause of action under § 1983, this Court is mindful that the judiciary should not ordinarily substitute its judgment for that of qualified health professionals, nor should it place unreasonable burdens upon a state mental health institution in light of the financial constraints under which such institutions operate. Moreover, this Court does not hold that allegations of constitutional violations based only upon mere malpractice, or improper professional judgment, will state a § 1983 cause of action. However, a state health care professional must exercise some professional judgment, and the failure of such a professional to take even minimal steps to provide for the safety of an involuntarily committed patient does implicate constitutional concerns. See, e.g., Johnson v. Silvers, 742 F.2d 823, at 825 (4th Cir.1984); see also Herer v. Burns, 577 F.Supp. 762 (W.D.Va.1984).

Accordingly, defendants’ motion to dismiss Count 1 of the plaintiff’s complaint is DENIED, and an Order to that effect will issue.


author: TERANCE T. EVANS, District Judge.

text:
    Walter ROGERS, Petitioner, v. Thomas ISRAEL, et al., Respondents.
    Civ. A. No. 81-C-653.
    United States District Court, E.D. Wisconsin.
    Dec. 7, 1984.
    William J. Tyroler, Asst. State Public Defender, Milwaukee, Wis., for petitioner.
    Thomas J. Balistreri, Asst. Atty. Gen., Wisconsin Dept, of Justice, Madison, Wis., for respondents.
   DECISION and ORDER

TERANCE T. EVANS, District Judge.

There must be something wrong with finality in criminal cases. If there isn’t, why does our dual court system go out of its way to fight a never-ending battle against it? This case clearly demonstrates that the battle goes on and on and on and on.

Here are the facts. Angelo Griffin was killed in a Racine, Wisconsin, tavern on May 29,1976. Lest one think a typographical error has occurred, I repeat the date, May 29, 1976. . The petitioner here, Walter Rogers, was promptly charged with first degree murder. The case went to trial before a Racine jury and Judge James Wilbershide in September of 1976, and Rogers was convicted of the crime charged. Kudos to the criminal justice system in Racine! In this era of delay, it acted quickly and appropriately. But hold the pickles, hold the lettuce, the case is not closed. As the President would say, “You ain’t seen nothing yet.”

On November 19, 1976, post-conviction motions were argued in state court. They were denied by Judge Wilbershide.

After the post-trial motions were denied, Rogers got a new lawyer. The new lawyer didn’t think the original one had done that good a job so he filed a second round of state post-conviction motions, claiming that Rogers was denied the effective assistance of counsel because Martin Hanson, Rogers’ trial counsel, had not presented expert testimony from a physician to contest that of the state’s expert. In preparation for trial, Hanson (as he testified at the state post-trial hearing) talked to physicians about the case, but they basically did not disagree with the state’s expert. A hearing on the motions was held in state court on November 11, 1977, 14 months after the trial had started and one year after the first set of post-conviction motions had been denied.

At the conclusion of the hearing on November 11, 1977, Judge Wilbershide, in a thorough and thoughtful bench decision, denied the motions. The judge found that Hanson had provided competent representation during the trial. Once again, kudos to the Racine justice system, and particularly to Judge Wilbershide. He got to the point and decided the issue promptly without falling into the' old judicial trap of taking it “under advisement.”

As everyone knows, however, this train has just begun its journey. The next stop is an appellate court.

In a decision issued on March 5,1979, the Wisconsin Court of Appeals denied relief to Rogers. The court’s unanimous opinion, authored by Judge Bode and joined by Judges Moser and Brown, found that ineffective representation had not occurred. The Wisconsin Supreme Court denied review.

Despite the fact that 12 jurors and eleven judges at three different levels of the Wisconsin court system have looked at this case, it now moved into the federal court system with the filing, on June 9, 1981, of Rogers’ petition for a writ of habeas corpus.

Before getting to what occurred here, a point about federal habeas corpus should be emphasized. Nothing in this decision, which is admittedly critical of the way this case has progressed through the dual court system, should be interpreted as meaning that access to the federal courts via habeas should be curtailed. However, federal courts should remember that the writ is The Great Writ, and as such it should not be used to nitpick over what other judges and jurors have done. In short, the writ should not be trivialized. To have any redeeming social value as a last vestige against state injustice, it should be decided — one way or the other, sooner than 8 years after a petitioner entered the prison yard. If justice has miscarried in Rogers’ case, it has taken far too long to correct it. And, if his claim is without merit, the repeated and microscopic examination it has received is more than it deserves.

I reviewed the petition and briefs submitted and, on November 22, 1982, entered a written Decision and Order denying relief to Rogers. Believing the issue presented to be unworthy of publication, I declined to submit it. Because the case continues to live and because I feel that my decision, should now be made part of its official record, I incorporate it herein and, with the entry of this decision, will submit both for publication.

On December 15, 1982, Rogers filed a notice of appeal of my Order with the United States Court of Appeals for the Seventh Circuit. Seventeen months after the notice of appeal was filed, on May 7, 1984, oral arguments on the case were heard in Chicago. On October 16, 1984, over 8 years after Rogers went to trial in Racine, the court, in a 2-1 decision, reported at 746 F.2d 1288 (7th Cir., 1984), remanded the case, stating:

Accordingly, we remand this case to the district court, where the petitioner must show that the failure to develop facts regarding the consulted physicians was not due to inexcusable neglect or deliberate bypass. If the petitioner fails in this showing, the writ of habeas corpus will be denied.. If the petitioner succeeds in showing the absence of inexcusable neglect or deliberate bypass, the district court must hold an evidentiary hearing, at which both parties may present evidence regarding the defense counsel’s efforts to obtain expert testimony. If, after this hearing, the district court finds that none of the physicians consulted by the defense counsel could have been qualified as an expert, the counsel’s performance must be judged to have been unreasonable and prejudicial, as discussed in this opinion, and the writ will be granted. If, on the other hand, the district court finds that the trial counsel consulted a physician who could have been qualified as an expert, thereby fulfilling his duty toward his client, the writ will be denied.

The mandate from the Court of Appeals was received here on November 14, 1984. So now, a new — two-tiered perhaps — proceeding is to be conducted in the district court. First, the “inexcusable neglect or deliberate bypass” issue must be addressed. Then, assuming Rogers can show me that the failure to develop facts at the second state post-conviction hearing regarding the consulted physician was not due to inexcusable neglect or deliberate bypass (question: if he can’t show it, does he have a new denial of effective assistance of counsel claim against his present attorney?), he gets an evidentiary hearing at which both parties may present evidence regarding Attorney Hanson’s efforts to obtain testimony from a “physician who could have been qualified as an expert.”

The murky “neglect/bypass” issue apparently must be addressed even though the second tier of the proceeding involves what may be a foregone conclusion. I may be wrong, but it would seem that any physician, simply on the basis of having got into and successfully completed medical school, should be “competent” to give an opinion on the subject matter of this dispute. Sure, the weight to be given to that opinion may depend on many factors, but the propriety of giving it, for what it’s worth, would seem to be proper.

By the time this is all resolved here, again in the Court of Appeals, perhaps in the United States Supreme Court, or, if the writ is granted, in a new trial in Racine, Rogers may not only be on parole, but be discharged from it. Given this possible scenario, is it any wonder why the courts are overburdened, finality hardly ever reached, and an ever-growing segment of our population becoming justifiably perturbed as we judicial officers fail to heed the call to correct the folly of our ways.

A proceeding, on the “inexcusable neglect and deliberate bypass” issue, is scheduled for January 21, 1985, at 2:00 p.m.

APPENDIX

DECISION and ORDER

Before me is Walter Rogers’ petition for a writ of habeas corpus.

Rogers alleges that his due process rights were violated because the jury at his state court trial was improperly instructed on the element of intent to kill, and that his right to the effective .assistance of counsel was violated because his trial counsel failed to call an expert witness to rebut the testimony of the state’s pathologist.

The first ground is not argued by Rogers, no doubt for the reason that Pigee v. Israel, 670 F.2d 690 (7th Cir.1982), cert. den., 459 U.S. 846, 103 S.Ct. 103, 74 L.Ed.2d 93 (1982), seals his fate on the issue. In his brief, however, Rogers argues that the closing argument of the prosecutor regarding the law on intent was improper. That issue is not presented in his petition and will not be considered here. Ironically, if the argument were considered, I believe the petition would have to be dismissed under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because the issue was not, so far as I can determine, presented to the state courts.

On September 17, 1976, Rogers was convicted in the Circuit Court for Racine County of first degree murder in connection with the killing of Angelo Griffin. His conviction was affirmed by the Wisconsin Court of Appeals on March 5, 1979. His petition for review by the Supreme Court of Wisconsin was denied.

The facts reveal that on the afternoon of May 29, 1976, Rogers and Griffin were at Al’s Vega Lounge in Racine where they became involved in a dice game with other patrons. Apparently, Rogers refused to pay off on a bet and Griffin pulled the money from his hand. A few minutes later, Rogers pulled a gun from his pocket, pointed it at Griffin, and fired. Griffin threw up his arms and ran toward Rogers. A brief struggle occurred and another shot was fired. Both men fell to the floor but only the petitioner got up. Griffin never moved again and was pronounced dead on arrival at a local hospital.

It was undisputed that two shots were fired, but that only one struck Griffin. Presumably, the other bullet went through the ceiling.

The central issue at trial was which shot killed Griffin. The state contended that it was the first, while the theory of the defense was that the second was the fatal shot. The state’s theory of the crime was that Griffin was wounded by the first shot, rushed forward and struggled with Rogers, but then collapsed without being struck by the second bullet.

At trial, the prosecution called Dr. Myron Schuster, who performed an autopsy on Griffin. He testified that Griffin died of a single gunshot wound to the chest with the bullet perforating the heart. Lending credence to the state’s theory of the case, Schuster testified that death from the type of wound Griffin sustained would be relatively rapid, but that it would be possible for the wounded person to move under his own power for an indeterminate period of time.

The defense contended that the second shot killed Griffin, pointing out that he collapsed immediately after that shot. No medical evidence or expert testimony was introduced to refute Dr. Schuster’s statement.

Rogers filed a post-conviction motion in the trial court pursuant to § 974.06, Wis. Stats., in which he alleged that he was denied the effective assistance of counsel. A hearing on the motion was held on November 11, 1977, at which Rogers, represented by an attorney from the office of the State Public Defender, called both his trial lawyer and Dr. Billy J. Bauman, a professor of pathology at the University of Wisconsin Medical School. After reviewing the trial testimony and the autopsy report of Dr. Schuster, Dr. Bauman prepared his own report in which he stated his opinion that the second shot killed Griffin. He stated that the fatal wound to Griffin was of such severity that the victim would have been “almost immediately incapacitated.” Tr. of Hearing November 11, 1977, pp. 15-17.

Attorney Martin I. Hanson, who represented Rogers at trial, testified at the post-conviction hearing that prior to trial he discussed Dr. Schuster’s findings with physicians from the Racine area to determine whether he could obtain a contrary medical opinion as to the effect of a bullet wound such as Griffin suffered. None of the physicians he consulted were pathologists. And none of them would say that the victim of such a wound would be immediately totally incapacitated. Rogers’ motion for post-conviction relief was denied in the state court.

In connection with his petition for habeas corpus relief in this court, Rogers has requested an evidentiary hearing. I have read the recent decision of the Court of Appeals in U.S. ex rel. Cosey v. Wolff, 682 F.2d 691 (7th Cir.1982), in which on a claim of ineffective assistance of counsel the district court was instructed to provide petitioner with a hearing. I find, however, that Rogers’ case differs significantly from Cosey. So far as I can tell, in Cosey petitioner had never had a hearing. The Court of Appeals saw unresolved factual questions which could only be answered by the testimony of trial counsel. Here, Rogers has been provided with a full hearing in state court. During the hearing Rogers’ trial counsel, Mr. Hanson, testified about the steps he had taken to obtain expert testimony. Hanson also candidly stated that had he known about Dr. Bauman, he would have used his testimony. Considering the record developed at the state hearing, I find that another hearing on the same issue in this court would be of no benefit and the request for an additional hearing is denied.

In order to prevail on a claim of ineffective assistance of counsel, it is not enough for petitioner to demonstrate that counsel made errors, even egregious ones, tactical or strategic, in either preparing for trial, in examining witnesses, or in not calling potential witnesses:

“... The burden is upon the [petitioner] to defeat the presumption that the attorney was conscious of his or her duties to the client and that he or she sought conscientiously to discharge those duties.” U.S. v. Garcia, 625 F.2d 162, 170 (7th Cir.1980).

The standard for adequate representation in this circuit is that the representation must meet minimum standards of professional competence. U.S. ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir.1975); cert. den. 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109; Wade v. Franzen, 678 F.2d 56 (7th Cir.1982); U.S. v. Murzyn, 631 F.2d 525 (7th Cir.1980).

I have reviewed the transcript of Rogers’ state trial and of the hearing on his post-conviction motion. I find that the representation he received from Mr. Hanson met minimum standards of professional competence. In fact, Rogers received, in my opinion, representation that was very competent.

Before I discuss the one thing which Rogers claims Mr. Hanson should have done but did not do, I will review briefly what was done in Rogers’ defense. Trial counsel called a Racine police officer to testify that Rogers was intoxicated the night of the murder. He called a police officer and the owner of the bar to testify as to the bullet hole in the ceiling tile, in an attempt to undermine the state’s evidence regarding that shot. He hired a private investigator and called him to testify as to the angle of the bullet hole in the tile. He called a student from the University of Wisconsin-Parkside who had once been with Rogers and fired the murder weapon, to testify to their having changed the firing sequence of the gun so that the top barrel fired before the bottom one, thus undermining the state’s first shot theory. He called a patrolman with the city of Racine Police Department who had test fired the murder weapon as to firing sequence. He called a former girlfriend of the victim to testify to a fight she had had in which Griffin pulled a gun on her. He called a city of Racine police officer to testify to an instance in which he had found Mr. Griffin in the possession of a .32 caliber revolver. In addition, Mr. Hanson, skillfully in my judgment, cross-examined the prosecution witnesses, including Dr. Schuster.

In contrast to what was done, what was not done was that counsel did not call a medical expert to state that if the first shot was the one which hit Griffin, he would have been immediately totally incapacitated. Rogers claims that it was an error of constitutional dimensions for trial counsel not to find such a witness.

At the hearing in state court on this issue, trial counsel testified that he had consulted with physicians in the Racine area and had not found anyone who would have testified that the shot would have immediately totally incapacitated Griffin. At that hearing Rogers presented the testimony and written report of Dr. Bauman, who testified at the hearing quite unequivocally that the wound would cause the “virtual, immediate, total incapacitation of the victim.” Tr. of hearing, November 11, 1977, p. 17. However, his report also entered into evidence said that:

“... The victim would have been almost immediately incapacitated after receiving this wound and it would have been almost impossible for him to have engaged in an approximate two minute vigorous physical struggle____”

As a trial judge, I know what points a good prosecutor could make over the word almost in the report. In addition, the report contains the following disclaimer:

“I realize of course that one must be extremely cautious in making absolute statements regarding functional activity after sustaining cardiac wounds since there are apparently substantiated reports in medical literature that victims of such injuries have performed activities that appear incompatible with the injuries sustained.”

In short, Dr. Bauman’s testimony was not as persuasive as Rogers asserts. It must be placed in context with the testimony of the state’s witnesses on which it would have to cast a “reasonable doubt.” The state presented several eyewitnesses who testified that Rogers’ pistol was pointed straight in the direction of Griffin when it was first fired. Rogers admitted on cross-examination that he intended to hit Griffin with the first shot. Trial Tr., p. 332. In addition, the ballistics expert stated that the fatal shot was fired about four feet from the victim, a distance inconsistent with discharge of the pistol during a struggle. Griffin had gunpowder deposits on his right forehead, strongly suggesting that a bullet which missed him was discharged close to his body.

I am unconvinced that failing to call a doctor to state what Dr. Bauman stated at the hearing plus what he wrote in his report constitutes ineffective assistance of counsel. Rather than ineffective assistance of counsel, Rogers received conscientious, vigorous representation. His petition here for a writ of habeas corpus is, therefore, denied.

IT IS THEREFORE ORDERED that the petition for the issuance of a writ of habeas corpus is denied.

Dated at Milwaukee, Wisconsin, this 22 day of November, 1982.

BY THE COURT:

/s/ Terence T. Evans

TERENCE T. EVANS

UNITED STATES

DISTRICT JUDGE

       Without showing the absence of inexcusable neglect or deliberate bypass, the petitioner is considered to have waived further development of facts. See generally Fay v. Noia, 372 U.S. [391] at 438 [83 S.Ct. 822, 848, 9 L.Ed.2d 837]; Thomas v. Zant, 697 F.2d [977] at 981. In the present case, the facts that were established at the state court hearing do not demonstrate that the "physicians” consulted by the trial counsel could not have been qualified as experts. Thus, if we were to consider only these facts, we could not conclude that the petitioner met his burden of demonstrating ineffective assistance of counsel. See, e.g., Marino v. United States, 600 F.2d 462, 464 (5th Cir.1979) ("a defendant represented by retained counsel who urges ineffectiveness of counsel bears the burden of establishing that charge, by a preponderance of the evidence”).