St. Mary's Honor Center v Hicks Brief Amici Curiae

    No. 93-1711

I n  T h e

iutjtn'mi' (Emtrt nf Hit Huttrft B M pb
O c t o b e r  T e r m , 1994

B e t t y  R o u sh ,
Petitioner,v.

KFC N a t io n a l  M a n a g e m e n t  C o m pa n y , 
________ Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

B R IE F  FOR THE RESPO NDENT IN OPPOSITION

Stanley Weiner  
J ones, Day, Reavis & P ogue 
2300 Trammell Crow Center 
2001 Ross Avenue 
Dallas, Texas 75201 
(214) 220-3939
Steven T. Catlett 

(Counsel of Record) 
Sarah L. W anner  
J ones, Day, Reavis & P ogue 
1900 Huntington Center 
41 South High Street 
Columbus, Ohio 43215 
(614) 469-3939 
Counsel for Respondent 

KFC National 
Management Company

W il s o n  - E p e s  p r in t in g  C o . ,  In c . - 7 8 9 -0 0 9 6  - W a s h in g t o n , D .C . 20001



QUESTIONS P R ESE N T E D

(1) Whether this Court should grant certiorari to ad­
dress an alleged Seventh Amendment issue that was not 
mentioned by the parties, or by the Court below, which 
resolved this Age Discrimination in Employment case by 
ruling, as a matter of law, that an equitable award of 
front pay was not permissible?

(2) Whether the Court of Appeals erred in ruling that 
Petitioner’s proof on the state law tort of outrage was 
legally insufficient, where Petitioner does not contend 
that the Court applied an incorrect standard for proof of 
outrage and where the formulation of that standard is 
entirely consistent with the formulation contained in the 
instructions given to the jury?

(i)





TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ............................................ i

TABLE OF AUTHORITIES .......................................... iv

STATEMENT......................................................................  1

REASONS FOR DENYING THE WRIT ..................... 5
I. THIS CASE PRESENTS NO SEVENTH 

AMENDMENT ISSUE SUITABLE FOR RE­
VIEW ....................... ,...............................................  6

II. THE STANDARD APPLIED BY THE COURT 
OF APPEALS IN OVERTURNING THE OUT­
RAGE AWARD DOES NOT PRESENT AN 
ISSUE FOR THIS COURT................................. 12

CONCLUSION..................................................................... 14

(iii)



Cases
TABLE OF AUTHORITIES

Page
3Craft v. Rice, 671 S.W.2d 247 (Ky. 1984)................

Davis v. Combustion Engineering, Inc., 742 F.2d
916 (6th Cir. 1984) ............ ................................. 3

Denison v. SWACO Gelograph Co., 941 F.2d 1416
(10th Cir. 1991)... ...............      7

Dominic v. Consolidated Edison Co., 822 F.2d 1249
(2d Cir. 1987) .........    7

Fairmount Glass Works v. Cub Fork Coal Co., 287
U.S. 474 (1933) ....................................................9,10,12

Gibson v. Mohaivk Rubber Co., 695 F.2d 1093 (8th
Cir. 1982) .....................................................  7

Goldstein v. Manhattan Industries, Inc., 758 F.2d 
1435 (11th Cir.), cert, denied, 474 U.S. 1005
(1985) ........................................................................ 7

Grunenthal v. Long Island Railroad Co., 393 U.S.
156 (1968) ....... .......................................................6, 8,11

Hansard v. Pepsi-Cola Metro. Bottling Co., 865 
F.2d 1461 (5th Cir.), cert, denied, 493 U.S. 842
(1989) .......................................................................

Herencia v. Guzman, 219 U.S. 44 (1911) _______
Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1

(Ky. 1990) ..............................................................  4
Lincoln v. Power, 151 U.S. 436 (1894) ...................  9
Maxfield v. Sinclair Infl, 766 F.2d 788 (3d Cir.

1985), cert, denied, 474 U.S. 1057 (1986) _____ 7
Neese v. Southern Railway Co., 350 U.S. 77

(1955)....................................................................... 6,8,11
New York Central & Hudson River R.R. Co. v.

Fraloff, 100 U.S. 24 (1879) ............................. . 8, 9-10
New York, Lake Erie & Western R.R. Co. v. Win­

ter, 143 U.S. 60 (1892).........................................  8-9,13
Phelan v. Local 305, 973 F.2d 1050 (2d Cir. 1992),

cert, denied, 113 S.Ct. 1415 (1993).......................  10-11
Phoenix Ry. Co. v. Landis, 231 U.S. 578 (1913).... 8
Southern Ry.-Carolina Division v. Bennett, 233

U.S. 80 (1914) ........................................................  8, 9
St. Louis, I.M. & S.R. Co. v. Craft, 237 U.S. 648

(1915) ....................................................................... 8

00
 -

q



V

Page
TABLE OF AUTHORITIES—Continued

Texas & Pacific R.R. Co. v. Hill, 237 U.S. 208
(1915) ....................................................................... 8

Wabash Ry. Co. v. McDaniels, 107 U.S. 454
(1883) ....................................................................... 9

Wildman v. Lerner Stores Corp., 771 F.2d 605
(1st Cir. 1985) ..................................

Wilson v. Everett, 139 U.S. 616 (1891)

Statutes
Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§621 et seq. ...... .....passim



I n  T h e

ia tjtn w  OInml uf %  MmtpJi States
O c t o b e r  T e r m , 1994

No. 93-1711

B e t t y  R o u sh ,
Petitioner,

KFC N a t io n a l  M a n a g e m e n t  C o m pa n y , 
________  Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

B R IE F  FOR THE RESPONDENT IN OPPOSITION

STA TEM EN T

Petitioner, a former employee of Respondent KFC 
National Management Company (“KFC”), brought claims 
against Respondent under the Age Discrimination in Em­
ployment Act ( “ADEA”), 29 U.S.C. §§ 621 et seq., and 
Kentucky tort law of outrage.1 After the case had been 
removed to the United States District Court for the 
Western District of Kentucky, it was set for trial before 
a jury in March, 1991.

The parties tendered proposed jury instructions to the 
Court in late February, 1991. Petitioner’s proffered 
ADEA damage instruction would have permitted the jury

1 Pursuant to Rule 29.1, the Court is advised that Respondent 
KFC National Management Company is a wholly-owned subsidiary 
of PepsiCo, Inc., which is a publicly-owned corporation.



2

to award, inter alia, the “amount of . . . future lost salary 
to the date that you believe [Petitioner] will stop working 
in the future,” and would have advised the jury that 
“[t]his instruction allows you to award . . . front pay, 
that is the payments [Petitioner] would have from the 
date of the trial until her retirement age.” See Plaintiffs’ 
Tendered Jury Instructions, No. B 12. The trial judge 
(the Honorable Thomas A. Ballantine, Jr.), however, 
rejected this instruction. Instead, the sole instruction that 
the Court gave the jury on the issue of ADEA damages 
spoke only in the past tense, calling for the jury to award 
“damages for lost income and benefits which she incurred 
as a result of her discharge.” Trial Tr. at 563 (emphasis 
added).

The Court further instructed the jury that it should 
sustain the claim of outrage if Petitioner proved that 
Respondent “by extreme and outrageous conduct inten­
tionally or recklessly caused severe emotional distress to 
her.” Id.

At trial, evidence regarding the amount of ADEA 
damages was offered only by Petitioner, and consisted of 
testimony by Petitioner’s accountant as well as Petition­
er’s own testimony as to her interim earnings, social secu­
rity benefits, and retirement benefits. On appeal, Petitioner 
could point to no record evidence inconsistent with the 
fact that the back pay component of her proof of ADEA 
damages totalled precisely $24,386. The jury, however, 
returned an award for Petitioner of $100,000 on the 
ADEA claim, and an additional amount on the outrage 
claim.

Respondent moved for j.n.o.v. and/or for a new trial, 
contending, inter alia, that the ADEA damage award 
necessarily and improperly included a substantial “front 
pay” component. Respondent also argued that, because 
the record failed to establish conduct by Respondent that 
was a “ ‘deviation from all reasonable bounds of decency 
[or] utterly intolerable in a civilized community,’ ” Peti­



3

tioner had failed to satisfy the stringent requirements 
under Kentucky law for showing outrage. See Defend­
ant’s Memorandum in Support of Motion for Judgment 
Notwithstanding the Verdict or, in the Alternative, for a 
New Trial, at 8-9, 20-21 (quoting Craft v. Rice, 671 S.W. 
2d 247, 250 (Ky. 1984)). Petitioner responded by con­
tending that “front pay is not only proper, it is man­
dated”; and that “the conduct which [she had] endured 
. . . was consistent, long lasting, reprehensible, emotion­
ally devastating, unacceptable in a civilized society, was 
far outside the bounds of decency and has physical as 
well as emotional impact.” See Plaintiff Betty Roush’s 
Response to Defendant’s Motion for Judgment Notwith­
standing the Verdict and New Trial, at 19, 30. (Empha­
sis added.)

U.S. District Judge Charles Simpson2 denied KFC’s 
request for post-trial relief on the ADEA damage and 
outrage issues. With respect to damages, the District 
Court ruled that “[f]ront pay, back pay, and various bene­
fits identified could all properly be considered by the 
jury in reaching its verdicts,” and accordingly upheld the 
award on the premise that “there is some basis in the 
record for the damage award.” Pet. App. 26a. As for 
the outrage claim, Judge Simpson concluded that there 
had been legally sufficient evidence presented that KFC’s 
conduct was “so extreme in degree as to go beyond all 
possible bounds of decency, to be regarded as atrocious 
and utterly intolerable in a civilized society.” Pet. App. 
28a.

Respondent appealed both rulings; the United States 
Court of Appeals for the Sixth Circuit reversed. With 
respect to the ADEA damages, the Court of Appeals 
observed that, under Davis v. Combustion Engineering, 
Inc., 742 F.2d 916, 923 (6th Cir. 1984), “determination 
of the propriety of an award of front pay is a matter for 
the court,” in its “sound discretion.” Pet. App. 10a.

2 Trial Judge Ballantine died before Respondent’s post-trial 
motion had been decided.



4

Then, the Court of Appeals concurred with KFC that 
“the [damage] award must have included front pay, be­
cause even Roush’s own evidence justified a back pay 
award totalling only $24,386.” Pet. App. 8a. The Court 
of Appeals also agreed with KFC that the trial court’s 
instructions to the jury had not authorized the jury to 
make an award of front pay. Pet. App. 10a. Further 
concluding that, “as a matter of law, front pay was not 
appropriate in this case,” the Court of Appeals reversed 
and remanded for entry of judgment in the amount of 
$24,386, stating that it “could not condone the ex post 
facto determination made by the district court in this 
case” in “approving] an apparent award of front pay by 
the jury” after having “previously refused to give a front 
pay instruction to the jury.” Pet. App. 12a-14a.

The Court of Appeals also reversed the District Court’s 
denial of j.n.o.v. on the outrage claim. See Pet. App. 
14a-16a. After noting that “the standard for proving 
liability for this tort is particularly stringent,” it then 
cited a requirement that, to show extreme and outrageous 
conduct, a plaintiff must establish that the defendant’s 
conduct has gone “beyond ‘all possible bounds of de­
cency.’ ” Pet. App. 15a (citing Humana of Kentucky, 
Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990)). This 
“bounds of decency” language was essentially the same 
formulation of the relevant standard that had been set 
forth in the District Court’s ruling on j.n.o.v., and it 
had been quoted approvingly in Petitioner’s appellate 
brief. Applying the standard, the Court of Appeals con­
cluded that Respondent’s actions “[e]ven when considered 
in their totality . . .  do not amount to ‘extreme and out­
rageous conduct’ justifying imposition of liability.” Pet. 
App. 15a.

Armed with new counsel, Petitioner now seeks a writ 
of certiorari in this Court, contending for the first time 
that the Seventh Amendment prohibited the review and 
result afforded in the Court of Appeals with respect to



the ADEA damage award, and that the formulation of 
the legal standard used by the Court of Appeals in re­
versing the denial of j.n.o.v. on the outrage claim im­
permissibly conflicted with the formulation contained in 
the relevant jury instruction.

REASONS FOR DENYING THE W RIT

The Petition identifies two issues that Petitioner be­
lieves this Court may have some interest in resolving: 
whether the Seventh Amendment permits a Court of 
Appeals to review and remit a jury award previously 
deemed not excessive by the trial court; and whether an 
appellate court engaging in a review of the sufficiency 
of the evidence is bound by a legally erroneous jury 
instruction to which the defendant made no objection. 
But notwithstanding the ingenuity of Petitioner’s new 
lawyers, these issues, and Petitioner’s case, simply do 
not match. Despite the repackaging effort contained in 
the Petition, certiorari should be denied on the ground 
that the issues proffered are not clearly presented here 
and were never litigated below. If they are of interest, 
they deserve an appropriate case for deciding them. This 
is not that case.

With respect to the Seventh Amendment argument, 
Petitioner cites a number of very old decisions from this 
Court stating that trial court decisions denying motions 
for a new trial based on purported excessiveness of the 
verdict are not reviewable. Those cases, however, in­
volved an attempt to have an appellate court reweigh the 
facts, not, as here, a reversal by a Court of Appeals 
for legal error. None of them, accordingly, suggests that 
the Seventh Amendment insulates the legal error com­
mitted by the trial court here— i.e., failing to disallow the 
jury’s front pay award—from the review and relief af­
forded below. Indeed, these cases affirmatively approve 
review of erroneous instructions and non-conforming 
verdicts. No Seventh Amendment issue was litigated be­
low and none is implicit in the record.

5



6

Likewise, this case does not present the issue Peti­
tioner seeks to raise concerning a deviation between the 
formulation of the legal standard used by the Court of 
Appeals in reversing the outrage award, and that used 
in the jury instructions. The formulations are not mean­
ingfully distinguishable; indeed, Petitioner has implicitly 
acknowledged as much by using throughout this litiga­
tion the same formulation adopted by the Court of Ap­
peals. The Court should leave the issue that the Petition 
attempts to raise for a case in which it is actually 
presented.

I. TH IS CA SE P R E SE N T S NO SEV EN T H  AM END­
M ENT ISSU E SU IT A B LE FOR R EV IEW

Petitioner claims that certiorari should issue based on 
the Seventh Amendment question that this Court raised, 
but left open, in Grunenthal v. Long Island Railroad Co., 
393 U.S. 156 (1968), and Neese v. Southern Railway 
Co., 350 U.S. 77 (1955)— namely, whether an appellate 
court can review and remit a trial court’s ruling upholding 
a verdict as not excessive. That issue, however, plainly 
is not presented by this case. Neither the parties, nor the 
Courts below, ever mentioned the Seventh Amendment in 
this litigation prior to the filing of the Petition, even 
though the review of the front pay award undertaken by 
the Court of Appeals could not have come as a surprise— 
the Court of Appeals’ ruling afforded Respondent the 
precise result and relief it had sought in the appeal.3

As argued and decided below, this case is about the 
District Court’s legal error in permitting the judgment to

8 See KFC’s Brief 14 (contending that verdict should have been 
conformed to Judge Ballantine’s jury instructions, which foreclosed 
an award of front pay) ; id., 16 (asserting and demonstrating that 
“Roush’s back pay can be precisely calculated from her own testi­
mony and that of her expert as a total of $24,386”) ; KFC’s Reply 
Brief 10 (stating that the evidence supports a back pay award of 
no more than $24,386 and that “The Court should order a specific 
reduction of $75,614”).



7

include a front pay award. First, Respondent argued 
below, and the Court of Appeals agreed, that front pay 
is an equitable remedy and its availability is a question 
for the court, and not the jury, to decide. In so ruling, 
the Court below followed the approach uniformly taken 
by each of the judicial circuits to address the issue.4 * Not 
surprisingly, then, Petitioner does not challenge this hold­
ing that the threshold availability of front pay is a purely 
legal issue. Next, the Court of Appeals proceeded to 
apply this established rule on the availability of front pay 
to the particular facts at hand. Based largely on the fact 
that Petitioner quickly obtained another job at a com­
parable salary, the Court of Appeals held that, as a mat­
ter of law, no award of front pay was appropriate. Once 
again, Petitioner does not challenge this holding.

Thus, the Petition does not challenge either of the 
Court of Appeals’ front pay holdings. Instead, in seeking 
to create a Seventh Amendment issue, the Petition con­
tends that the Court of Appeals was powerless to review 
and rectify the trial court’s front pay rulings once that 
Court had denied Respondent’s post-trial motion, leaving 
the jury’s verdict intact. It is hard to see how, in ad­
dressing the purely legal issue of eligibility for front 
pay, the Court of Appeals could possibly have created 
a Seventh Amendment issue. And, indeed, none of Pe­
titioner’s authorities even remotely suggest that a refusal 
to grant post-trial relief erects a constitutional barrier

4 See, e.g., Wildman v. Lerner Stores Corp., 771 F.2d 605, 616
(1st Cir. 1985) ; Dominic v. Consolidated Edison Co., 822 F.2d 
1249, 1257 (2d Cir. 1987) ; Maxfield v. Sinclair Int’l, 766 F.2d 788, 
796 (3d Cir. 1985), cert, denied, 474 U.S. 1057 (1986); Hansard 
v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir.), 
cert, denied, 493 U.S. 842 (1989) ; Gibson v. Mohawk Rubber Co., 
695 F.2d 1093, 1100-01 (8th Cir. 1982); Denison v. SWACO Geolo- 
graph Co., 941 F.2d 1416, 1425-26 (10th Cir. 1991) ; Goldstein v. 
Manhattan Industries, Inc., 758 F.2d 1435, 1448 (11th Cir.), cert, 
denied, 474 U.S. 1005 (1985). Only the District of Columbia Cir­
cuit has not addressed the issue.



8

insulating a judgment from review and correction of legal 
error.

The complete absence of any discussion of the Seventh 
Amendment in the proceeding below— as well as Peti­
tioner’s failure to preserve any Seventh Amendment is­
sue— are themselves fatal to the Petition. But even had 
these issues been raised, they are wholly inapposite to 
the Court of Appeals’ disposition of this case, as is evi­
dent from the contrast between the ruling below and the 
authorities that Petitioner contends (Pet. 7-9 & n.16) 
create the Seventh Amendment issue identified in Grunen- 
thal and Neese.

Specifically, Petitioner’s authorities stand for the un­
remarkable proposition that an appellate court should 
be wary of inferring that a trial court has erred in 
rejecting a weight-of-the-evidence challenge to a jury’s 
determination of a disputed factual issue.5 They acknowl- 6

6 See, e.g., New York Central & Hudson River R.R. Co. v. Fralojf, 
100 U.S. 24, 31-32 (1879) (“our authority does not extend to a re­
examination of facts which have been tried by the jury under in­
structions correctly defining’ the legal rights of parties.” ) ; Southern 
Ry.-Carolina Division v. Bennett, 233 U.S. 80 (1914) (where verdict 
“excess did not appear as a m atter of law” but instead “upon the 
evidence,” reexamination by this Court of the size of the verdict 
was improper, since “ [t]he premises of the argument for the 
plaintiff in error were not conclusive upon the jury, and . . .  no 
such error appears as to warrant our imputing to judge and jury 
a connivance in escaping the limits of the law.” ) ; Texas & Pacific 
R.R. Co. v. Hill, 237 U.S. 208 (1915) (following Bennett) ; St. 
Louis, I.M. & S.R. Co. v. Craft, 237 US. 648 (1915) (amount 
awarded for pain and suffering not open for reconsideration for 
excessiveness, as this issue involved a question of fact) ; Phoenix 
Ry. Co. v. Landis, 231 U.S. 578, 582 (1913) (where “ [t]he argu­
ment, in substance, is that the verdict was without sufficient basis 
in the evidence,” but where “ [i] t cannot be said that there was no 
evidence to go to the jury[,] an objection that the verdict is against 
the weight of evidence or that damages allowed were excessive 
cannot be considered in this court”) ; Herencia v. Guzman, 219 U.S. 
44 (1911) (sam e); Neiv York, Lake Erie & Western R.R. Co. v. 
Winter, 143 U.S. 60 (1892) (this Court had no jurisdiction on



9

edge the obvious point that errors of law— expressly in­
cluding a trial court’s erroneous instructions, or, as here, 
a verdict in clear contravention of proper instructions— 
are not subject to this rule, whether on review of denial 
of a motion for new trial or otherwise. See Fairmount 
Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 482-84 
(1933). Rather than suggesting, as does the Petition 
(Pet. 12-14), that a Court of Appeals cannot construe 
and consider the propriety of jury instructions and the 
jury’s compliance with them, these cases typically preface 
their refusals to disturb a judgment below with a comment 
that, after careful review, the Court has determined that 
the jury was properly instructed. E.g., Bennett, 233 U.S. 
at 86; Fraloff, 100 U.S. at 30-33; Lincoln v. Power, 151 
U.S. 436, 438 (1894).6

In this case, the Court of Appeals did not purport to 
determine that the weight of the evidence, as a matter of 
fact, showed the verdict to have been excessive. Compare, 
e.g., Fairmount Glass, 287 U.S. at 482-84 (noting that 
evidence was voluminous and conflicting, and that de­
fendant had pleaded several defenses and a counterclaim, 
in refusing to disturb jury award as inadequate); Fraloff, 
100 U.S. at 30-33 (noting, in rejecting attack on verdict * 6

writ of error to decide questions of fact, or consider the weight 
to be given to evidence properly admitted) ; Wilson v. Everett, 139 
U.S. 616 (1891) (no review on writ of error of amount of verdict, 
where “ [t]he case was fairly submitted to the jury, and the issues 
involved were passed upon by them”) ; Wabash Ry. Co. v. McDaniels, 
107 U.S. 454 (1883) (court lacks authority to disturb damage award 
as excessive because “our power is restricted to the determination 
of questions of law arising upon the record”).

6 Petitioner’s argument for deference to the district court’s read­
ing of the jury instructions (e.g., Pet. 12, contending that “ [t]he 
District Court was particularly well situated to recognize the mean­
ing of its jury instructions, and to realize how the jury would have 
understood them”) is especially inappropriate here, where the 
district judge who tried the case and instructed the jury has died 
and a new judge unfamiliar with the case was asked to rule on 
the post-trial motion.



10

as excessive, that “the evidence, in some of its aspects, 
placed the [amount of damages] very far in excess of 
[the] amount” awarded by the jury). Rather than en­
gaging in the prohibited re-weighing of the facts, the 
Court of Appeals here simply determined that front pay 
damages were not available as a matter of law and that 
the portion of the verdict attributable to them accord­
ingly could not stand.

Likewise, this case does not present the issue that 
Petitioner’s authorities identify as problematic— i.e., im­
properly inferring an error of law from a mere summary 
denial of a new trial motion. Here, the District Court 
in its post-trial ruling expressly held that the verdict 
was proper in including a front pay component. See Pet. 
App. 24a-26a. The Court of Appeals had every right to 
correct that legal error. Compare, e.g., Fairmount Glass, 
287 U.S. at 482-84 (concluding that ruling denying mo­
tion for new trial on grounds of excessiveness would not 
be disturbed, since, inter alia, “the record before us does 
not contain any explanation by the trial court of the 
refusal to grant a new trial, or any interpretation by it 
of the jury’s verdict”).

Finally, Petitioner’s attempt to find a Seventh Amend­
ment issue in the Court of Appeals’ reduction of the jury 
award (Pet. 16-22) fails for the same reason as her at­
tack on that Court’s authority to disturb the District 
Court’s post-trial ruling: the Court of Appeals neither 
determined that the jury verdict was “excessive” as a 
matter of fact, nor did it order a “remittitur” on that 
basis. Instead, having concluded that the front pay com­
ponent of the award was improper as a matter of law, 
the Court of Appeals disallowed it. Even the Courts of 
Appeals that Petitioner cites as finding Seventh Amend­
ment concerns in an appellate court’s remittitur of a ver­
dict for excessiveness do not dispute that vacating dam­
ages that were improperly awarded as a matter of law is 
within the province of a Court of Appeals. E.g., Phelan



11

V. Local 305, 973 F.2d 1050, 1063 (2d Cir. 1992) 
(“Accordingly, the back pay award against Patrick 
Quinn should be set off in full [against earlier award of 
back pay to plaintiff] to prevent a double recovery” ), 
cert, denied, 113 S. Ct. 1415 (1993). Since Petitioner 
failed to show the Court of Appeals that there was any 
dispute or question of fact concerning the portion of the 
verdict attributable to front pay, she can hardly complain 
that there has been any infringement of her right to have 
the amount of damages set by a jury. After all, the jury 
did set the amount of damages; the Court of Appeals 
merely eliminated the front pay component after ruling 
that it was legal error for the trial court to have author­
ized front pay.

In sum, this case does not present the Seventh Amend­
ment questions that the Petition raises. Should the Court 
wish to address those issues, it will need the benefit of a 
record clearly presenting them. This is particularly so 
since, even by Petitioner’s own admission, the Courts of 
Appeals at present see no constitutional impediment to 
reviewing, and setting aside, jury verdicts as excessive. 
See Pet. 12. The two cases on which Petitioner relies 
are both somewhat dated— Neese was decided in 1955; 
Grunenthal was decided in 1968— and this Court has not 
seen the need to revisit the issue since. Grunenthal, in­
deed, notes that, even at that date, “[a]ll 11 counts of 
appeals have held that nothing in the Seventh Amend­
ment precludes appellate review of the trial judge’s denial 
of a motion to set aside an award as excessive.” If such 
a widespread practice is to be reevaluated, it should be 
done on a clear record with the issues examined below. 
This case has no such record, and certiorari should be 
denied.7

7 It should be noted that the early decisions of this Court on 
which petitioner so heavily relies by no means necessarily demon­
strate that a Seventh Amendment issue exists. These cases uni­
formly rely on the then-existing “w rit of error” jurisdiction in



12

II. THE STANDARD A PPLIED  B Y  TH E COURT OF 
A P P E A LS IN OVERTURNING TH E OUTRAGE 
AWARD DOES NOT P R E SE N T  AN  ISSU E FOR 
TH IS COURT

Petitioner alternatively suggests that this Court should 
grant certiorari to decide whether an appellate court en­
gaging in review of the sufficiency of the evidence is 
bound by a legally erroneous jury instruction to which 
the defendant made no objection. Once again, Petitioner 
selects an issue not presented by this case.

Petitioner notes that the jury was instructed here that 
it could award damages for outrage if Respondent “by 
extreme and outrageous conduct intentionally or reck­
lessly caused severe emotional distress to her.” Pet. 22. 
She then complains that the Court of Appeals, in reversing 
the jury’s decision, cited a requirement that, to show ex­
treme and outrageous conduct, a plaintiff must establish 
that the defendant’s conduct has gone “beyond ‘all pos­
sible bounds of decency.’ ” Pet. 23. While Petitioner 
does not claim that the Court of Appeals applied the 
wrong state law standard, she does contend that that 
Court’s formulation of the standard somehow deviated 
from the formulation used in the jury instruction.

As an initial matter, Petitioner plainly has not pre­
served this issue. Not only did she fail to object to the 
“bounds of decency” standard when Respondent referred 
to it in moving for j.n.o.v., and on appeal (see KFC’s 
Reply Memorandum in Further Support of Motion for 
Judgment Notwithstanding the Verdict or, In the Alterna­
tive, for a New Trial at 14; KFC’s Brief 26 )—Petitioner 
herself cited it approvingly before both the District Court 
and the Court of Appeals. See Plaintiff Betty Roush’s

holding that excessiveness is unreviewable. Only one or two even 
mention the Seventh Amendment, and those do not definitively decide 
that a Seventh Amendment problem exists. Moreover, the Fair- 
mount opinion reflects an erosion of the rule of nonreviewability 
even under w rit of error analysis.



13

Response to Defendant’s Motion for Judgment Notwith­
standing the Verdict and New Trial at 23-24; Petitioner’s 
Brief 24.

Moreover, as Petitioner’s own earlier adoption of the 
“bounds of decency” language demonstrates, there is no 
clear distinction between the two formulations. The mere 
fact that that language was not set forth in the jury in­
structions in no way establishes a discrepancy. Cf. New 
York, Lake Erie & Western R.R. Co. v. Winter, 143 
U.S. 60 (1879) (“In fact, it is much the better practice 
to refuse to give instructions to the jury, the substance 
of which has already been stated in the general charge, 
than to repeat the same charge in different language, al­
though the charge requested may be technically correct 
as an abstract proposition of law; for a multitude of in­
structions, all stated in different language and meaning 
the same thing, tends rather to confuse than to enlighten 
the minds of the jury.”). The Court of Appeals’ discus­
sion indicates that that Court, at least, viewed the two 
formulations of the legal standard as interchangeable, 
negating the possibility of any error in the ruling revers­
ing the verdict on outrage. See Pet. App. 14a-16a. In­
deed, the Court of Appeals’ actual conclusion that insuffi­
cient evidence existed uses the precise language contained 
in the jury instruction. See Pet. App. 15a ( “Even when 
considered in their totality, these actions do not amount 
to ‘extreme and outrageous conduct’ justifying imposition 
of liability for the tort of outrage in this case.” ). The 
issue that Petitioner seeks to raise is not presented on this 
record, and certiorari should be denied.



14

CONCLUSION

For the reasons set forth above, the petition should be 
denied.

Respectfully submitted,

Stanley W einer  
J ones, Day, Reavis & P ogue 
2300 Trammell Crow Center 
2001 Ross Avenue 
Dallas, Texas 75201 
(214) 220-3939
Steven T. Catlett 

(Counsel of Record) 
Sarah L. Wanner  
J ones, Day, Reavis & P ogue 
1900 Huntington Center 
41 South High Street 
Columbus, Ohio 43215 
(614) 469-3939 
Counsel for Respondent 

RFC National
Dated: July 13,1994 Management Company