throbber

`
`No. ______
`
`In the
`Supreme Court of the United States
`________________
`GENERAL MOTORS LLC,
`Petitioner,
`
`v.
`MICHAEL BAVLSIK; KATHLEEN SKELLY,
`Respondents.
`________________
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Eighth Circuit
`________________
`PETITION FOR WRIT OF CERTIORARI
`________________
`
`STEPHANIE A. DOUGLAS
`JESSICA V. CURRIE
`BUSH SEYFERTH &
`PAIGE PLLC
`3001 Big Beaver Rd.,
`Suite 600
`Troy, MI 48084
`(248) 822-7800
`douglas@bsplaw.com
`Counsel for Petitioner
`
`February 23, 2018
`
`ERIN E. MURPHY
` Counsel of Record
`ANDREW C. LAWRENCE
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, NW
`Washington, DC 20005
`(202) 879-5000
`erin.murphy@kirkland.com
`
`
`
`

`

`
`
`QUESTION PRESENTED
`In Gasoline Products Co. v. Champlin Refining
`Co., 283 U.S. 494, 500 (1931), this Court held that
`partial retrials comport with the Seventh Amendment
`only if “it clearly appears that the issue to be retried
`is so distinct and separable from the others that a trial
`of it alone may be had without injustice.” Applying
`that constitutional presumption against partial
`retrials, several circuits have properly held that a
`court may not grant a damages-only retrial if the
`evidence suggests that the jury may have rendered a
`“compromise verdict”—that is, awarded low damages
`to resolve non-unanimity over liability. In the decision
`below, by contrast, the Eighth Circuit agreed that “a
`strong case” had been made that the jury rendered a
`compromise verdict, but nevertheless concluded that a
`damages-only retrial was acceptable. In doing so, the
`court joined a minority of circuits in applying a legal
`test that improperly inverts the Gasoline Products
`presumption, treating a damages-only retrial as
`presumptively permissible and requiring the party
`that opposes a partial retrial to “clearly demonstrate”
`that the jury verdict was the result of compromise.
`That legal test is wrong, and the Eighth Circuit’s
`decision employing it exacerbates a division among
`the lower courts that this Court should resolve.
`The question presented is:
`Whether the constitutional presumption against
`damages-only retrials that this Court recognized in
`Gasoline Products permits a damages-only retrial in
`the face of a finding that “a strong case” has been made
`that the jury issued an impermissible compromise
`verdict.
`
`
`
`

`

`
`
`ii
`PARTIES TO THE PROCEEDING
`Petitioner General Motors LLC was defendant in
`the district court and defendant-appellee/cross-
`appellant in the court of appeals.
`Respondents Michael Bavlsik and Kathleen
`Skelly were plaintiffs in the district court and
`plaintiffs-appellants/cross-appellees in the court of
`appeals.
`
`
`
`
`
`
`
`
`
`

`

`
`
`iii
`CORPORATE DISCLOSURE STATEMENT
`General Motors LLC is a Delaware limited
`liability company whose only member is General
`Motors Holdings LLC. General Motors Holdings
`LLC’s only member is General Motors Company, a
`Delaware corporation with its principal place of
`business in Wayne County, Michigan. General Motors
`Company owns 100% of General Motors Holdings
`LLC.
`
`
`
`
`
`
`

`

`
`
`iv
`TABLE OF CONTENTS
`QUESTION PRESENTED .......................................... i
`PARTIES TO THE PROCEEDING ........................... ii
`CORPORATE DISCLOSURE STATEMENT ........... iii
`TABLE OF AUTHORITIES ...................................... vi
`PETITION FOR WRIT OF CERTIORARI ................ 1
`OPINIONS BELOW ................................................... 4
`JURISDICTION ......................................................... 4
`CONSTITUTIONAL PROVISIONS INVOLVED ..... 4
`STATEMENT OF THE CASE ................................... 5
`A. The District Court Proceedings ................... 5
`B. Eighth Circuit Proceedings .......................... 9
`REASONS FOR GRANTING THE PETITION ....... 12
`I. The Lower Courts Are Divided Over The
`Standard To Apply When Determining
`Whether A Damages-Only Retrial Can Be
`Held Consistent With The Constitution ........... 13
`II. The Decision Below Is Plainly Wrong .............. 19
`A. This Court’s Precedent Establishes a
`Clear
`Constitutional
`Presumption
`Against Damages-Only Retrials ................ 19
`B. The Eighth Circuit’s Presumption in
`Favor of Damages-Only Retrials Cannot
`Be Reconciled with Gasoline Products or
`the Constitution .......................................... 22
`III. This Case Is An Ideal Vehicle To Resolve A
`Frequently Recurring And Exceptionally
`Important Constitutional Issue ........................ 25
`
`
`
`

`

`
`
`v
`CONCLUSION ......................................................... 28
`Appendix A
`Opinion of the United States Court of
`Appeals for the Eighth Circuit, Michael
`Bavlisk; Kathleen Skelly v. General
`Motors, LLC, Nos. (16-1491 & 16-1632)
`(Mar. 8, 2017)............................................... App-1
`Appendix B
`Order of the United States Court of
`Appeals for the Eighth Circuit Denying
`Rehearing En Banc, Michael Bavlisk;
`Kathleen Skelly v. General Motors, LLC,
`Nos. (16-1491 & 16-1632) (Oct. 26, 2017) . App-25
`Appendix C
`Memorandum and Order of the United
`States District Court for the Eastern
`District of Missouri, Michael Bavlsik,
`M.D., and Kathleen Skelly v. General
`Motors, LLC (No. 4:13 CV 509 DDN)
`(Jan. 29, 2016) ........................................... App-27
`
`
`
`
`
`

`

`
`
`vi
`TABLE OF AUTHORITIES
`
`Cases
`Ajax Hardware Mfg. Corp.
`v. Indus. Plants Corp.,
`569 F.2d 181 (2d Cir. 1977) ....................... 17, 18, 27
`Balt. & Carolina Line v. Redman,
`295 U.S. 654 (1935) ................................................ 20
`Boesing v. Spiess,
`540 F.3d 886 (8th Cir. 2008) .................................. 10
`Carter v. Chi. Police Officers,
`165 F.3d 1071 (7th Cir. 1998) ................................ 18
`Colgrove v. Battin,
`413 U.S. 149 (1973) ................................................ 27
`Collins v. Marriott Int’l, Inc.,
`749 F.3d 951 (11th Cir. 2014) ................ 3, 14, 24, 27
`Cooper Indus., Inc.
`v. Leatherman Tool Group, Inc.,
`532 U.S. 424 (2001) ................................................ 24
`Diamond D Enters. USA, Inc. v. Steinsvaag,
`979 F.2d 14 (2d Cir. 1992) ............................... 16, 27
`Edie v. East India Co.,
`1 W. Bl. 295 (K.B. 1761) ........................................ 20
`Gasoline Prods. Co.
`v. Champlin Refining Co.,
`283 U.S. 494 (1931) ........................................ passim
`Great Coastal Exp., Inc.
`v. Int’l Bhd. of Teamsters, Chauffeurs,
`Warehousemen and Helpers of Am.,
`511 F.2d 839 (4th Cir. 1975) .................................. 27
`
`
`
`

`

`
`
`vii
`
`Lucas v. Am. Mfg. Co.,
`630 F.2d 291 (5th Cir. 1980) ............................ 15, 27
`Mekdeci By & Through Mekdeci
`v. Merrell Nat’l Labs., a Div. of Richardson-
`Merrell, Inc.,
`711 F.2d 1510 (11th Cir. 1983) .............................. 15
`N.L.R.B. v. Jones & Laughlin Steel Corp.,
`301 U.S. 1 (1937) .................................................... 19
`Phav v. Trueblood, Inc.,
`915 F.2d 764 (1st Cir. 1990) ............................ 18, 27
`Pryer v. C.O. 3 Slavic,
`251 F.3d 448 (3d Cir. 2001) ......................... 3, 16, 27
`Skinner v. Total Petroleum, Inc.,
`859 F.2d 1439 (10th Cir. 1988) ........................ 17, 27
`Spell v. McDaniel,
`824 F.2d 1380 (4th Cir. 1987) ................................ 18
`Westbrook v. Gen. Tire & Rubber Co.,
`754 F.2d 1233 (5th Cir. 1985) ................................ 15
`Constitutional Provisions
`U.S. Const. amend. V ................................................. 4
`U.S. Const. amend. VII. ....................................... 4, 19
`Statute
`28 U.S.C. §1254(1) ...................................................... 4
`Rules
`35B C.J.S. Fed. Civil Procedure §973 (2018) ........... 22
`Fed. R. Civ. P. 59(a) .................................................. 25
`
`
`
`

`

`
`
`viii
`
`Other Authorities
`11 Wright & Miller, Federal Practice and
`Procedure §2814 (3d ed. 2017) ................... 17, 19, 21
`3 W. Blackstone, Commentaries .............................. 20
`Advisory Committee Notes on
`Fed. R. Civ. P. 59 (1937) ........................................ 25
`Br. for the United States as Amicus Curiae,
`Cisco Systems, Inc. v. Commil USA, LLC,
`No. 13-1044 (U.S. Oct. 16, 2014) ........................... 26
`Conditional Cross Pet. for Cert.,
`Cisco Systems, Inc. v. Commil USA, LLC,
`No. 13-1044 (U.S. Feb. 27, 2014) ........................... 26
`
`
`
`
`
`
`

`

`
`
`PETITION FOR WRIT OF CERTIORARI
`Nearly a century ago, this Court held that partial
`retrials comport with the Seventh Amendment only if
`“it clearly appears that the issue to be retried is so
`distinct and separable from the others that a trial of it
`alone may be had without injustice.” Gasoline Prods.
`Co. v. Champlin Refining Co., 283 U.S. 494, 500
`(1931). In the decades since Gasoline Products, the
`lower courts have reached conflicting conclusions
`regarding the propriety of granting partial retrials
`limited only to damages, particularly
`in cases
`involving suspected “compromise verdicts”—that is,
`cases where a jury appears to have resolved its
`disagreement over the defendant’s
`liability by
`awarding the plaintiff legally inadequate damages.
`This Court should grant certiorari to resolve the
`division of authority over this important and recurring
`constitutional question.
`This petition arises out of a products-liability case
`brought by Michael Bavlsik and his wife, Kathleen
`Skelly, against General Motors, LLC (“GM”). In 2012,
`Bavlsik hit his head on the roof of his vehicle after
`running a stop sign, colliding with another vehicle,
`and rolling down a roadside embankment, rendering
`him quadriplegic and financially burdening him and
`his family for the rest of his life. Respondents brought
`suit in tort against GM, and the case proceeded to
`trial. During trial, it became clear that the evidence
`that GM was at fault for Bavlsik’s tragic injuries was
`exceedingly slim, leading the jury to ask during its
`deliberations whether Bavlsik would be able to receive
`some compensation “regardless of our decision.” After
`the court responded that Bavlsik would recover only if
`
`
`
`

`

`2
`
`the jury found GM liable, the jury promptly returned
`a verdict that rejected all of respondents’ claims except
`one. Although the jury found that Bavlsik’s vehicle
`contained no design defects, the jury nonetheless
`inexplicably deemed GM liable for negligently failing
`to adequately “test” for the very defects that the jury
`found did not exist. The jury then awarded Bavlsik
`only $1 million as compensation for past damages—
`even though his quadriplegia necessarily means that
`he will face substantial future costs—and awarded his
`wife no loss-of-consortium damages.
`To state the obvious, that result bears all the
`hallmarks of an impermissible compromise verdict.
`Indeed, respondents themselves admitted in the
`district court that the odd verdict suggests the jury
`“may have been compromising.” The Eighth Circuit
`likewise conceded that GM made “a strong case” that
`the verdict was an impermissible compromise, which
`all agree requires a full retrial of both liability and
`damages. Nonetheless, the Eighth Circuit refused to
`grant a full retrial because it was not convinced that
`the record “clearly demonstrate[d]” that the jury had
`in fact reached a compromise verdict. As a result,
`despite the court’s admission that there was “a strong
`case” that the jury never actually agreed on liability,
`the jury’s liability finding (or, more likely, non-
`finding) is now set in stone, and respondents will
`receive a damages-only retrial
`that virtually
`guarantees a much larger monetary award.
`The Eight Circuit’s decision cannot be reconciled
`with this Court’s precedent or with decisions from
`other circuits. Under Gasoline Products, damages-
`only retrials are presumptively impermissible and
`
`
`
`

`

`3
`
`should be allowed only when it “clearly appears” that
`a retrial limited to damages would not present
`fairness concerns. 283 U.S. at 500. Following that
`rule, several circuits have appropriately concluded
`that a damages-only retrial is an impermissible
`remedy when there is reason to think that the jury
`may have compromised, even if the court cannot say
`for certain that the jury actually did. As those courts
`have recognized, that is the sole way to ensure not only
`that a second jury is not reexamining facts found by
`the first jury, but also that defendants are not forced
`to pay damages for conduct that no jury actually found
`tortious. By contrast, the decision below applies a
`standard under which a damages-only retrial may be
`held despite
`“a strong case”
`that
`the
`jury
`compromised. In reaching that untenable result, the
`Eighth Circuit joined a minority of circuits in
`converting the presumption against damages-only
`retrials into a presumption in favor of them.
`As this case vividly illustrates, inverting the
`presumption is no mere foot-fault, as where the
`presumption lies can make all the difference when
`imposing a remedy. Indeed, this case plainly would
`have come out differently in the Third and Eleventh
`Circuits, which require a full retrial if there are
`“indications” that a jury “may have rendered a
`compromise verdict,” Collins v. Marriott Int’l, Inc., 749
`F.3d 951, 960 (11th Cir. 2014), or where there is
`“reason to think that the verdict may represent a
`compromise among jurors,” Pryer v. C.O. 3 Slavic, 251
`F.3d 448, 455 (3d Cir. 2001) (quotation marks
`omitted). That makes this case an excellent vehicle
`for this Court to provide much-needed guidance on the
`standard that courts should apply when deciding
`
`
`
`

`

`4
`
`whether a damages-only retrial is consistent with the
`Constitution.
`OPINIONS BELOW
`The Eighth Circuit’s opinion is reported at 870
`F.3d 800 and reproduced at App.1-24. The district
`court’s opinion is unreported but available at 2016 WL
`362512 and reproduced at App.27-55.
`JURISDICTION
`The Eighth Circuit issued its opinion on August
`31, 2017. GM timely filed a petition for rehearing,
`which the court denied on October 26, 2017. On
`January 3, 2018, Justice Gorsuch extended the time
`for filing this petition to and including February 23,
`2018. This Court has jurisdiction under 28 U.S.C.
`§1254(1).
`CONSTITUTIONAL PROVISIONS INVOLVED
`The Seventh Amendment to the U.S. Constitution
`provides:
`In Suits at common law, where the value in
`controversy shall exceed twenty dollars, the
`right of trial by jury shall be preserved, and
`no fact tried by a jury, shall be otherwise re-
`examined in any Court of the United States,
`than according to the rules of the common
`law.
`The Fifth Amendment to the U.S. Constitution
`provides in relevant part:
`No person shall be … deprived of life, liberty,
`or property, without due process of law.
`
`
`
`

`

`5
`
`STATEMENT OF THE CASE
`A. The District Court Proceedings
`1. GM
`is one of the
`largest automobile
`manufacturers in history. GM sells vehicles under a
`variety of brands—including GMC, Chevrolet, Buick,
`and Cadillac—to millions of customers in the United
`States and around the world. Those customers
`included respondent Michael Bavlsik, a Missouri
`resident and father of eight who in August 2003
`purchased a 2003 Model GMC Savana, a full-size
`passenger van that can seat 12 passengers. App.2.
`Nine years after purchasing the van, in July 2012,
`Bavlsik was driving two of his sons and eight other
`passengers home to St. Louis after a trip to northern
`Minnesota when he ran a stop sign and hit a boat that
`was hitched to another vehicle. App.3. Bavlsik lost
`control of the Savana, which skidded to the opposite
`side of the road and completed a three-quarters roll
`down a roadside embankment. App.3. Fortunately,
`none of Bavlsik’s passengers sustained injuries during
`the accident, but Bavlsik himself tragically suffered a
`spinal injury that rendered him quadriplegic: “He has
`no motor movement below [his] chest.” App.3
`Bavlsik’s professional life has been impacted, and he
`will “need to pay for some form of care for the rest of
`his life.” App.4
`2. In March 2013, Bavlsik and his wife, Kathleen
`Skelly, filed a products-liability lawsuit against GM
`on diversity grounds in federal district court. App.4.
`They asserted three claims: (1) strict liability, alleging
`that the Savana’s seatbelt system lacked three specific
`safety features; (2) negligence, based on GM’s failure
`to implement those seatbelt system safety features or
`
`
`
`

`

`6
`
`alleged failure to conduct adequate rollover testing of
`the van to gauge the performance of the seatbelt
`system; and (3) failure to warn. App.2. Bavlsik sought
`past and future damages for loss of income, pain and
`suffering, medical expenses, and punitive damages,
`and his wife sought past and future damages for loss
`of consortium. App.4.
`The case proceeded to trial, which lasted three
`weeks. App.4. At trial, there was almost no evidence
`that the safety features respondents proposed would
`have prevented Bavlsik’s injuries. And approximately
`two hours into its deliberations, the jury asked the
`court a question that revealed its own doubts about
`GM’s liability—namely, whether, if the jury included
`a past damages figure in the damages section of the
`special
`verdict
`form, Bavlsik
`could
`receive
`compensation “regardless of our decision.” App.19-20.
`The district court responded that Bavlsik would
`receive money for past damages “only if the jury found
`GM liable.” App.19-20.
`The jury returned a verdict just two hours later,
`finding GM not liable on all but one of respondents’
`claims. The jury rejected respondents’ strict-liability
`claim, which had asserted that the Savana was in a
`“defective condition unreasonably dangerous” absent
`three seatbelt safety features. Add.1.1 The jury also
`rejected respondents’ failure-to-warn claim, finding
`that the failure to provide warnings about the absence
`of respondents’ alleged safety features or that a
`driver’s head could contact the roof during a rollover
`did not render the van unreasonably dangerous.
`
`1 “Add.” refers to the Addendum filed with the Eighth Circuit.
`
`
`
`

`

`7
`
`Add.4. And the jury rejected respondents’ theory that
`failure to include the three seatbelt safety features
`rendered GM “negligent in the design of the plaintiffs’
`2003 Savana van.” Add.3.
`Despite the jury’s finding that Bavlsik’s van
`contained no design defects, the jury found GM
`negligent for not “adequately test[ing]” the non-
`defective seatbelt system, and also found that this
`negligence “directly cause[d] damage” to Bavlsik.
`Add.3-4. Yet the jury declined to award Bavlsik any
`future damages, and instead awarded him only $1
`million for past damages. App.2-3. The jury also
`declined to award his wife any loss of consortium
`damages. Add.6.
`3. Both parties filed post-trial motions. GM
`renewed its motion for judgment as a matter of law,
`contending that respondents’ negligent-failure-to-test
`theory could not stand because the evidence
`conclusively demonstrated that GM had not designed
`the Savana’s seatbelt system in a defective manner.
`In the alternative, GM moved for a new trial on the
`ground that the jury’s finding on the failure-to-test
`theory strongly suggested an improper compromise
`verdict. Dkt.199 at 9-10.2 As GM explained, the
`circumstances of this case, including “the jury’s
`question to the Court” regarding compensation for
`past damages, indicated “that the jury may have
`improperly sought to find a way to reimburse [Bavlsik]
`for past medical expenses” even though it did not
`actually believe that GM was liable for his injuries.
`Dkt.199 at 10.
`
`2 “Dkt.” refers to docket entries in the district court.
`
`
`
`

`

`8
`
`Respondents also moved for a new trial—but only
`a partial retrial limited to damages—arguing that the
`jury’s award was “glaringly inadequate.” Dkt.197 at
`1. In the alternative, however, respondents agreed
`with GM that the district court could “find that this
`was a compromise verdict,” which would necessitate a
`retrial on both liability and damages. Dkt.197 at 2. In
`support of the latter argument, respondents observed
`that “after a few hours of deliberation, the jury sent a
`note … indicating that, at that point, the jury may not
`have been unanimous” and
`“may have been
`compromising.” Dtk.197 at 7-8. As a result, and
`particularly in light of the jury’s inadequate damages
`award, respondents concluded, “a case can be made
`that this was a compromise verdict.” Dtk.197 at 7.
`4. The district court granted GM’s renewed
`motion for judgment as a matter of law, thereby
`setting aside the sole basis for finding GM liable. The
`court agreed with GM that “there is insufficient
`evidence to support a verdict for plaintiffs for
`negligent design based upon a failure to test.” App.34-
`35. As the court explained, the applicable state tort
`law in this case “requires a defect in the product to
`support a claim for negligent failure to test,” and—as
`the
`jury found in rejecting respondents’ defect
`claims—here there was insufficient evidence of any
`defect. App.32.
`As required by Federal Rule of Civil Procedure
`50(c)(1), however, the district court also conditionally
`ruled on both parties’ new trial motions. Even though
`the court had
`just concluded that there was
`insufficient evidence to hold GM liable on a negligent
`failure-to-test theory, it nonetheless held in the
`
`
`
`

`

`9
`
`alternative that it would preserve the jury’s head-
`scratching liability finding and grant respondents a
`partial retrial devoted exclusively to “Bavlsik’s future
`damages” and “Skelly’s damages, past and future.”
`App.40. The court summarily “reject[ed] [GM’s] and
`[respondents’] arguments for a new trial based on a
`compromise verdict” without mentioning the Gasoline
`Products standard or grappling with any of the
`unusual circumstances surrounding the verdict. App-
`41. In an abbreviated analysis, the court found no
`compromise because, in its view, evidence in the
`record could support
`the
`jury’s
`failure-to-test
`finding—without
`even
`discussing
`(let
`along
`considering) the strong evidence of compromise that
`both parties highlighted. App.40-41. Finding the
`jury’s damages award “unjust,” App.38, the court
`concluded that respondents should receive a damages-
`only retrial in the event the Eighth Circuit disagreed
`that GM is entitled to judgment as a matter of law.
`B. Eighth Circuit Proceedings
`Respondents appealed the district court’s decision
`to grant judgment as a matter of law to GM, and GM
`cross-appealed
`the conditional ruling granting
`respondents a damages-only retrial.3 The Eighth
`Circuit reversed as to the first issue but affirmed as to
`the second, thereby providing respondents a new trial
`at which liability will be conclusively presumed, and
`respondents need only prove the extent of their
`damages.
`
`
`3 On appeal, respondents abandoned their argument that the
`jury may well have rendered a compromise verdict and instead
`contended only that they should receive a damages-only retrial.
`
`
`
`

`

`10
`
`To begin, the court recognized that respondents’
`negligent-failure-to-test theory—and, in particular,
`the element of causation—was “hotly contested” at
`trial, and that the jury’s finding on that claim
`appeared inconsistent with its rejection of the defect
`claims. Nonetheless, the court ultimately concluded
`that “there was legally sufficient evidence for a
`reasonable jury to find GM liable … for failing to
`conduct adequate testing.” App.15.
`Turning to the district court’s conditional decision
`to grant a damages-only retrial, the court declared it
`“generally permissible for a trial court to grant a new
`trial on damages only.” App.16. The “overarching
`consideration,” the court continued, “must be whether
`the record, viewed in its entirety, clearly demonstrates
`the compromise nature of the verdict.” App.18
`(quoting Boesing v. Spiess, 540 F.3d 886, 889 (8th Cir.
`2008)). “‘Several factors’ are often probative of
`whether jurors improperly compromised,” such as a
`“grossly inadequate award of damages,” the pattern of
`jury deliberations, and whether there was “‘a close
`question of liability.’” App.18 The Eighth Circuit
`addressed each of these factors seriatim.
`First, the court acknowledged that “both sides
`agree the damages award is seriously inadequate,”
`and that “the low verdict amount is consistent with a
`compromise verdict.” App.19. However, because
`“reduced damages are part of the very definition of a
`compromise verdict,” the court found this factor alone
`“falls short of convincing us” that “the better route was
`to order a [full] new trial to remedy the inadequate
`damages problem.” App.19. The court next examined
`the “odd pattern of jury deliberations”—in particular,
`
`
`
`

`

`11
`
`the “note the jury submitted two hours into their
`deliberations
`asking whether Bavlsik would
`recover … past medical expenses … regardless of our
`decision.” App.19. Again, the court agreed that “the
`jury’s question … raises the possibility the jurors
`compromised.” App.20. But the court determined the
`jury’s question did not “compel” that conclusion.
`App.20-21.
`Finally, as to whether liability was a “close
`question,” the court had already acknowledged that
`liability was “hotly contested.” App.11. And it
`acknowledged “the
`jury’s seemingly
`inconsistent
`verdict,” puzzling over “how could the jury find
`rollover testing would have led to a better design
`capable of preventing Bavlsik’s injuries if the jury
`seemingly rejected the only design alternatives the
`plaintiffs offered?” App.21. Yet the court refused to
`treat that seeming inconsistency as evidence of
`compromise, reasoning that GM could point to it only
`to support an argument that the verdict must be
`rejected as inconsistent. App.21-22. The court did not
`cite any authority for its apparent view that verdict
`inconsistency
`is categorically
`irrelevant to the
`compromise verdict analysis.
`After rejecting each indicia of compromise in
`isolation, and without considering the totality of the
`evidence, the Eighth Circuit concluded that it was “not
`convinced the record so clearly demonstrates a
`compromise verdict that the trial court abused its
`discretion in not recognizing as much.” App.23
`(emphasis in original). In the court’s view, “there were
`a number of options the trial court could choose from,”
`and “a new trial for Bavlsik’s future damages and
`
`
`
`

`

`12
`
`Skelly’s past and future damages was one of those
`permissible options.” App.23. Accordingly, after
`acknowledging that GM “ma[de] a strong case” that
`the jury rendered a compromise verdict, and thus that
`the jury never actually found GM liable, App.16, the
`court nonetheless affirmed the grant of a partial
`retrial in which the second jury will be instructed that
`GM has already been found liable for Bavlsik’s
`injuries, App.3, 24.
`REASONS FOR GRANTING THE PETITION
`The decision below reached the wrong result
`because the court applied the wrong legal standard.
`As this Court made clear nearly a century ago, while
`damages-only retrials are not entirely incompatible
`with the Constitution, they are presumptively so, and
`should be allowed only when it is clear that they will
`not deprive either party of a fair trial. Applying those
`principles, several circuits have correctly concluded
`that a damages-only retrial cannot be held consistent
`with the Constitution if there is reason to suspect that
`the jury returned a compromise verdict. Instead,
`consistent with the presumption that Gasoline
`Products establishes, those circuits will allow a
`damages-only retrial only when it is clear that the
`jury’s verdict was not an impermissible compromise.
`The Eighth Circuit applied exactly the opposite
`standard here, treating a damages-only retrial as the
`presumptively permissible remedy, and one that
`should be allowed absent conclusive evidence that the
`jury did compromise. Indeed, the court affirmed the
`district court’s decision to order a damages-only retrial
`even though it readily acknowledged that GM made “a
`strong case” that the verdict was the product of an
`
`
`
`

`

`13
`
`impermissible compromise. That gets matters exactly
`backward, and creates an untenable risk of
`deprivation of the right to a fair trial on each and every
`aspect of a case. The Eighth Circuit held that a
`damages-only retrial could be ordered even though
`GM had made “a strong case” that the jury did not
`actually hold it liable. That result is impossible to
`reconcile with this Court’s admonition that a
`damages-only retrial is constitutionally permissible
`only if it “clearly appears” that “a trial of [damages]
`alone may be had without injustice.” Gasoline Prods.,
`283 U.S. at 500.
`Unfortunately, the Eighth Circuit is not alone in
`inverting the Gasoline Products presumption. Several
`other circuits likewise have held that a damages-only
`retrial may be had unless the record “clearly
`demonstrates” that the jury did return a compromise
`verdict. The decision below thus deepens a division
`among the lower courts—on an issue that was
`outcome-determinative in this case. The Court should
`grant certiorari to resolve that split of authority and
`confirm that the Constitution cannot tolerate a
`damages-only retrial when even the plaintiff has
`conceded that the record supports the conclusion that
`the jury issued an impermissible compromise verdict.
`I. The Lower Courts Are Divided Over The
`Standard To Apply When Determining
`Whether A Damages-Only Retrial Can Be
`Held Consistent With The Constitution.
`This Court held long ago that damages-only
`retrials are presumptively incompatible with the
`Constitution, and accordingly may be ordered only
`when it “clearly appears that the issue to be retried is
`
`
`
`

`

`14
`
`so distinct and separable from the others that a trial
`of it alone may be had without injustice.” Id. Applying
`that rule, lower courts have repeatedly recognized
`that a damages-only retrial cannot be held if the jury
`reached an impermissible compromise verdict. It
`could hardly be otherwise, as it would be an obvious
`violation of both the Seventh Amendment and the Due
`Process Clause to allow a second jury to award
`damages for conduct that the first jury did not actually
`find rendered the defendant liable.
`Lower courts agree that a damages-only retrial
`would be unconstitutional if the first jury issued a
`compromise verdict, but when evaluating a record for
`compromise, courts have applied different standards
`and presumptions. Recognizing that it is nearly
`impossible to know to a certainty what motivated a
`jury’s verdict, several courts have appropriately
`recognized that requiring clear proof that the jury in
`fact compromised would be inconsistent with the
`Gasoline Products presumption against single-issue
`retrials, and would pose too great a risk of violating
`defendants’ constitutional rights. Instead, these
`courts have refused to permit damages-only retrials
`unless it is clear that the jury did not render a
`compromise verdict.
`For instance, in Collins v. Marriott Int’l, Inc., 749
`F.3d 951 (11th Cir. 2014), the Eleventh Circuit
`explained that “[a] motion for a [complete] new
`trial … must be granted ‘when the issues of liability
`and damages were tried together and there are
`indications that the jury may have rendered a
`compromise verdict.’” Id. at 960 (emphasis added)
`(quoting Mekdeci By & Through Mekdeci v. Merrell
`
`
`
`

`

`15
`
`Nat’l Labs., a Div. of Richardson-Merrell, Inc., 711
`F.2d 1510, 1513 (11th Cir. 1983)). Applying that
`standard, the court concluded that a full retrial was
`warranted when the jury’s damages finding was
`“drastically deficient,” “[l]iability was hotly contested
`by the parties at trial,” and the jury “ask[ed] whether
`it could find liability but award zero damages.” Id. at
`960-62. As to the jury’s question, the Eleventh Circuit
`explained that it “suggests” that “some members of the
`jury may have gone along with a finding of liability
`only if accompanied by an award of zero damages,” id.
`at 962 (emphasis added), but it did not require the
`defendant to “clearly demonstrate” a compromise
`verdict.
`The Fifth Circuit has applied the same standard,
`explaining in Lucas v. Am. Mfg. Co., 630 F.2d 291 (5th
`C

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