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1 $upreme Jubicial ClCourt FOR THE COMMONWEALTH OF MASSACHUSETTS No. SJC MICHAEL ALEO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROBIN ALEO, PLAINTIFF-ApPELLEE, v. TOYS "R" US, INC., TOYSRUS.COM, LLC, DEFENDANTS-ApPELLANTS. ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT FOR ESSEX COUNTY REPLY BRIEF FOR THE DEFENDANTS-APPELLANTS, TOYS "R" US, INC. and TOYSRUS.COM, LLC Gregory T. Parks Admitted Pro Hac Vice A. Lauren Carpenter BBO# Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA Telephone: (215) Fax: (215) John J. McGivney BBO# Scott A. Aftuck BBO# Rubin and Rudman LLP 50 Rowes Wharf Boston, MA Telephone: (617) Fax: (617) Counsel for Defendants-Appellants, TOYS "R" US, INC. and TOYSRUS.COM, LLC

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii DISCUSSION 1 I. THE TRIAL AND ITS OUTCOME WERE TAINTED BY RELIANCE ON AN INAPPLICABLE REGlJLATION... 1 II. 1207'S INAPPLICABILITY HAS BEEN PRESERVED... 3 A. TRU Did Not Admit That 1207 Applied to the Inflatable Slide... 4 B. TRU Raised and Preserved Its Challenge to the Application of C. The Trial Court's Ruling on TRU's Post-Trial Motions Preserved Challenges to the Applicability of D. Substantial Justice Requires Review of the Applicability of III. THE TRIAL COURT ERRED IN REFUSING TO ALLOW TRU TO ESTABLISH THE SAFE HARBOR DEFENSE IV. PLAINTIFF FAILED TO OFFER PROOF OF A SAFER ALTERNATIVE DESIGN FOR THE INFLATABLE SLIDE V. THE STATEMENTS IN THE POLICE REPORTS AND MEDICAL RECORDS SHOULD HAVE BEEN ADMITTED VI. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A FINDING THAT TRU WAS GROSSLY NEGLIGENT... 16

3 VII. THIS COURT'S REVIEW OF THE CONSTITUTIONALITY OF THE PUNITIVE DAMAGE AWARD MUST BE DE NOVO, AND PLAINTIFF'S CITATIONS ARE INAPPOSITE 18 VIII. MORE DEFERENCE TO THE CLOSING ARGUMENT WILL ENCOURAGE MORE PREJUDICIAL ARGUMENTS INCENTIVIZED BY THE PROSPECT OF MULTI-MILLION DOLLAR AWARDS CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIBS CASES: ASG Industries, Inc. v. Consumer Product Safety Commission, 593 F.2d 1323 (D.C. Cir. 1979)... 3 Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480 (2000)... 9 BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) Boeken v. Phillip Morris, Inc., 127 Cal. App. 4th 1640 (Ca. App. Ct. 2005) Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31 (1991) Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 (1977) Boyd v. National RR Passenger Corp., 446 Mass. 540 (2006)... 21, 22 Brewster Wallcovering Company v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582 (2007)... 9 Cohen v. Bd. of Regis. in Pharm., 350 Mass. 246 (1966) ii

4 Commonwealth v. Acevedo, 427 Mass. 714 (1998 ) Commonwealth v. Hallet r 427 Mass. 552 (1998) Cooper Industries r Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) CSX Transportation, Inc. v. Palank r 743 So. 2d 556 (Fla. App. 1999) laveris v. W.T. Rich Co., Inc' r 424 Mass. 9 (1996) Everett v. Ejofodomir 76 Mass. App. Ct. 1131, 2010 WL (2010)... 9 Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) Flax v. Daimler Chrysler Corp., 272 S.W. 3d 521 (Tenn. 2008) Gath v. MIA Com, Inc' r 440 Mass. 482 (2003)... 24, 25 Harlow v. Chin, 405 Mass. 697 (1989)... 24, 25 Hatton v. Meade, 23 Mass. App. Ct. 356 (1987) Melrose Appliance Center, Inc. v. Eastern Erection Company, 354 Mass. 771 (1968) Michnik-Zilberman v. Gordon's Liquor r Inc., 390 Mass. 6 ( 83)... 12, 15 NStar Electric Co. v. Dep't of Pub. Utilities, 4 62 Ma S s ( ) Rotkiewicz v. Sadowsky, 431 Mass. 748 (2000) iii

5 Santos v. Chrysler Corp., 430 Mass. 198 (1999)... 23, 24, 25 Smith v. Ariens Co., 375 Mass. 620 (1978) Southland Mower Company v. CPSC, 619 F.2d 499 (5th Cir. 1980)... 2, 3 Squeri v. McCarrick, 32 Mass. App. Ct. 203 (1992) Timmons v. Massachusetts Bay Transportation Authority, 412 Mass. 646 (1992)... 9 Tuttle v. McGeeney, 344 Ma s s (1962) union Pacific R.R. Co. v. Barber, 365 Ark. 268 (Ark. 2004) Wightman v. Consolidated Rail Corp., 86 Ohio St. 3d 431 (Ohio 1999) REGULATIONS AND ORDERS: 16 C.F.R passim Standing Order 1-09 (1) (c) (9)... 4 MISCELLANEOUS: R. Hammesfahr & L. Nugent, Punitive Damages: A State by State Guide to Law and Practice, at 7:7 through 7:106, pp (West 2011) iv

6 Defendants Toys "Rtf Us, Inc. and Toysrus.com, LLC ("defendants tf or "TRU") reply to the Brief for plaintiff-appellee Michael Aleo ("plaintiff tf or "Aleo tf ) ("Aleo Br. If).1 Plaintiff fers no valid reason to firm a verdict that rests on multiple errors by the trial court and penalizes TRU for failing to comply with an inapplicable federal regulation. Nor is there sufficient support for $18 million in punitive damages based on a verdict of only "gross negligence." DISCUSSION I. THE TRIAL AND ITS OUTCOME WERE TAINTED BY RELIANCE ON AN INAPPLICABLE REGULATION Plaintiffls brief repeatedly invokes 1207 to support the verdict. See, at 18-21, 30, , 42, 46-48, 52. This leaves no doubt that both liability and punitive damages turned on the performance standards in Because plaintiff offers no valid substantive reason to apply those standards to the Inflatable Slide l and is no reason, the verdict should be reversed. 1 The terms "TRU Br." or \\TRU Brief lf as used herein refer to the Brief for defendants-appellants Toys "R" US I Inc. and Toysrus.com, LLC. Other capitali terms refer to those fined in the TRU Brief.

7 Plaintiff does not deny either that (1) is limited to what the CPSA permits, and (2) CPSC CPSC may promulgate a performance standard only if it makes Eroduct-specific findings about the risks posed by that product, benefits of the standard, and the adverse economic effects of standard. TRU Br. at Plaintiff does not aim that the CPSC ever undertook this analysis with respect to inflatable slides. This failure is dispositive. Plaintiff errs in suggesting that inflatable slides are purportedly the same "product ll as the rigid slides the CPSC addressed in its 1976 findings. Aleo Br. at 29. Although the CPSC "may treat 'a range of similar products as a single product class' if they 'exhibit... sufficient similarity of functional and risk characteristics,'li an air-filled slide made of fabric is obviously not a "similar product" with similar "functional and risk characteristics" as a rigid slide. TRU Br. at 26-27; Southland Mower Company v. CPSC, 619 F.2d 499, (5th Cir. 1980) (emphasis added). And even when (unlike here) a product is similar to a general category of products, the CPSC must make findings of reasonable necessity to justify applying a performance standard to that 2

8 specific product if it differs in function and/or risk from the general category products. 2 No such findings were ever made for inflatable slides. FinallYr plaintiff's assertions that the cpse was concerned with "spinal cord injuries" in 1207 r and that Ms. Aleo suffered a spinal cord injuryr cannot support applying 1207 to inflatable slides. The circumstances of Ms. Aleors injury are different from the risk the CPSC sought to reduce in a slider's head hitting the bottom of the pool - and the 1207 standards can have no relevance to inflatable slides or Ms. Aleo's injury. TRU Br. at II. 1207'S INAPPLICABILITY HAS BEEN PRESERVED Plainti ignores the full record in claiming that he and the trial court were "blindsided" because TRU purportedly "waited lf until after trial to argue that 1207 did not apply. Aleo Br. at 22, 23. In 2 See ASG Industries, Inc. v. Consumer Product Safety Commission, 593 F.2d 1323, (D.C. Cir. 1979) (CPSC's safety standard for general product category of "architectural glazing materials" could not be applied to wired glass, even though it fell within the definition the epsc used to describe the general category, unless the cpse established that, despite the differences of wired glass from the other regulated products, "application of the standard to [wired glass] remains 'reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product'") (emphasis added)i Southland Mower Company, 619 F.2d at

9 fact, TRU raised the issue before, during and after al. As the trial court stated, "all" the arguments in TRU's post-trial motions, including the applicability of 1207, were addressed during trial (A.1640, 3097); see also II(C) below. A. TRU Did Not Admit That 1207 Applied to the Inflatable Slide TRU did not "admit [ ] that the Standard applied" in either its interrogatory answers or its brief opposing discovery sanctions. Aleo Br. at 22. The interrogatory at issue asked TRU to state whether contended that 1207 "was not applicable to the Slide," and "[i]f your answer is anything other than an unqualified negative, pursuant to Standing Order 1 09, l(c) (9), please state the is of any aim or contention by Toys R Us that 16 C.F.R not apply to the ide." (A.204 (No. 41).)3 TRU's supplemental answer (made in response to a court order) responded that, while its expert theorized that 1207 "applies to all slides," he believed that "numerous provisions" of the performance standards in 1207 "are inapplicable to the subject Slide." (A Standing Order 1-09(1) (c) (9) requires only the disclosure of "the factual basis" for a party's contention, not its I arguments. 4

10 45, ) (emphasis added). TRU's supplemental response so asserted facts ing its contention that 1207 did not apply, including that inflatable slides did not exist when 1207 was promulgated; that some of the 1207 performance standards make no sense as applied to inflatable sl i and that a representative of the CPSC concluded that all the performance standards in 1207 could not be applied to an latable slide (A ). This response, which explains why many parts of 1207 do not and cannot apply to the Inflatable Sli, obviously does not admit the opposite., if TRU had intended the response to be an unqualified admission, it would have no reason to explain or elaborate on its position. Nor did TRU make such an admission in its opposition to plaintiff's motion for sanctions relating to the same rrogatory response. Although TRU's opposition that it had "complied with the Court's order [to provide further responses] by stating that 1207 C.F.R. applies to the subject slide" (A.295) '. it also explained why all the performance standards of 1207 could not be applied to the Inflatable Slide: "As the regulation was enacted years prior to this product being introduced into the 5

11 market not all subsections of this regulation were enacted with this product in mind. Again, this is underscored in the CPSC correspondence discussed above." (A.296.) the application Again, this statement, which rejects 1207 performance standards to the Inflatable Slide, is not an admission to the contrary. Even the plaintiff did not believe, as he now claims, that TRU had conceded the applicability of Indeed, plaintiff filed a "Motion in Limine Precluding Any Evidence or Argument That Any Part of 16 C.F.R Is Inapplicable to the Slide, and for Instructions to the Jury Concerning Its Applicability to the Slide." (A. 395.) And in the Joint Pretrial Memorandum, plaintiff acknowledged that TRU contended that 1207 did not apply by stating that TRU was "expected to defend the case by claiming that [ 1207] somehow does not apply to the swimming pool slide because it is inflatable." (A.30B) (emphasis added). B. TRU Raised and Preserved Its Challenge to the Application of 1207 There is no merit in plaintiff's assertion that TRU waived its challenge to the application of 1207 during trial or jury instruction. Alea Br. at TRU had made its objections known by the time the 6

12 regulation was offered into evidence and the jury instructed. By that time, the court had ruled on the applicability of including that it would instruct the jury that 1207 applied. It would have been futile for TRU to repeat its objections. First, as a sanction on plaintiff's motion, the trial court ordered it admitted that the Inflatable Slide had not been tested for compliance with 1207 (A.793~94). That order neces ly implied such a ruling; there would have been no need for an order on whether the slide complied with the 1207 standards if 1207 did not apply. Plaintiff's current position that the order did not establish the applicability 1207 is also contrary to plaintiff's position before and during trial. In a pretrial motion, plaintiff referred to the court's discovery ruling, stating: "[t]his Court has already ruled that 16 C.F.R is applicable to the sli at issue," and "there is simply no basis for excluding a regulation which the Court has already ruled is applicable to the product." (A.1232, 1234) (emphasis added). Plaintiff's pretrial submission similarly insisted that the same discovery order had determined the applicability of 1207 (A.785, ) ("plaintiff submits that the product 7

13 was sold by the defendants in violation of federal law, and this Court has already so found. (Exhibit 1).") (emphasis added)., over TRU's objections, the tri court --- granted plaintiff's motion in limine, which sought both to preclude TRU from arguing or offering evidence that any part of 1207 did not apply, and that the jury be instructed on the applicability of 1207 (A.16 (Dkt. No. 42), , ),4 Third, the trial court denied TRU/s motion in limine to preclude plaintiff from arguing that the slide was "illegal" because it did not comply with 1207 (A.17 (Dkt. No. 56) ). These rulings made clear that the trial court considered 1207 to apply to the Inflatable ide. It would have been futi 1 counterproductive, and a waste 4 TRU's opposition to the motion in limine made clear that it did not agree that 1 of the 1207 performance standards applied to the Inflatable Slide. It quoted the CPSC letter that opined that "some of the requirements of ion would likely not be deemed applicable," and argued that its expert "should be able lowed [sic] to provide his opinion as to which, if any, sections are not applicable." rd. (emphasis in original), In oral argument in opposition to the same motion in limine, TRU's counsel also argued that slides like the inflatable slide did not exist in 1976, that the 1207 performance standards apply to a fiberglass or metal slide which "is a different animal," and that the Inflatable Slide "doesn't meet that." (A ) 8

14 of the court's and jury's time for TRU to have continued objecting each time the issue arose again at trial. Objections are preserved under such circumstances. See,~, Timmons v. Massachusetts Bay Transportation Authority, 412 Mass. 646, 649 n.4 (1992) (defendant's arguments were preserved where court's rulings showed that further objections would have been futile); Everett v. Ejofodomi, 76 Mass. App. Ct. 1131, 2010 WL at *1 (2010) (unpublished decision) (when plaintiff opposed defendant's motion in limine, "the court's allowance of the defendants' motion relieved her of the duty to make a futile offer during trial and to absorb another ruling of exclusion"); Brewster Wallcovering Company v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, n.34 (2007) (when trial court's statements indicated it would have been futile to move for relief on the insufficiency of the evidence, the failure to make a post-trial motion did not waive the arguments; "the [Massachusetts] rules of civil procedure are instruments for the promotion of justice _ not the exaltation of mere technicalities") (guoting Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 484 n.8 (2000)). Indeed, this Court has rejected the 9

15 "hard and fast ll approach of the First Circuit, which strictly requires objections after the charge. Instead, this Court emphasizes that the purpose of Rule 51 is to "put the judge on notice of the issue," which can be accomplished in "a variety of ways," including in pre-trial motions. Rotkiewicz v. Sadowsky, 431 Mass. 748, 751 (2000) (objection to a jury instruction preserved where the judge "acknowledge[s] his awareness of the issue, explicitly rule[s] on it, and expresse[s] his intention not to instruct as requested" even when the objecting party does not renew its objection at the end of the jury charge). C. The Trial Court's Ruling on TRU's Post-Trial Motions Preserved Challenges to the Applicability of 1207 TRU's objections to 1207 were also preserved because TRU raised them in post-trial motions and the trial court addressed their merits (A , 1640, 3097). The trial court did not accept plaintiff's argument that TRU had waived its 1207 objection, but rejected TRU's 1207 argument as a substantive matter. As the trial court stated at the January 31, 2012 hearing on the post trial motions: 10

16 With respect to the straight out motion for JNOV and motion for new trial [which raised the 1207 issue], I do not need to hear argument on that. To be frank, I gave due consideration to all these issues at the time of trial. I don't feel the need to revisit them again. (A.3097.) (Emphasis added.) See also Orders Denying TRU's Post-Trial Motions (A.164 0, 1641) ("The issues that are raised by the motion were all considered by the Court at the time of trial and will not be revisited.") (Emphasis added.) These post-trial rulings preserved the issues for appeal. See ~I Commonwealth v. Acevedo, 427 Mass. 714, 715 (1998) (where, in denying defendant's motion for new trial, trial judge addressed issues that had not been preserved for appellate review during the trial, "those issues must be considered on appeal as if fully preserved for appellate review") (citing Commonwealth v. Hallet, 427 Mass. 552, 555 (1998)). D. Substantial Justice Requires Review of the Applicability of 1207 Even if the issue of the applicability of 1207 had been waived, substantial justice would require granting a new trial because the issue was pivotal to the trial, and the error irremediably tainted the verdict.' This Court has recognized that an error's 11

17 effect on the outcome of may be such that "substant justice ll requires a new trial, even if the issue has not been pre See Tuttle v. McGeeney, 344 Mass. 200, (1962) ("substantial justice" required new trial jury instructions "tended to confuse and mislead the jury," even though defendant did not object to them) i Melrose Appliance Center, Inc. v. Eastern Erection Company, 354 Mass. 771, 772 (1968) {"substantial justice" required new trial where jury instructions clouded the case and confused jury).5 It would be grossly unfair to affirm a $20 million judgment on an obviously untenable theory. It would be unconscionable to do so when $18 million of the judgment penalizes TRU for purported 5 See also Squeri v. McCarrick, 32 Mass. App. Ct. 203, 204 (1992) (where jury was instructed, without objection, on a theory that did not apply, the trial was so filled with error, misinstruction, and probable jury confusion that substantial justice red new trial, even though defendants did not properly preserve some of errors for appeal) i Hatton v. Meade, 23 Mass. App. Ct. 356, (1987) {new trial may be granted, even if no directed verdict motion is made, when verdict is "wholly without legal support... in order to prevent a manifest injustice"; noting that "[t]he failure of defendant's counsel this case to seek a directed verdict (when his motion to reserve decision on count II the judge was deni is understandable," and that "[t]he complicat of some situations presented by [Rule 50(b)] might il even a lawyer of competence and sophistication."} {citing Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 8-10 (1983)). 12

18 "gross negligence" in failing to ensure that the Inflatable Slide compli with an inapplicable regulation. III. THE TRIAL COURT ERRED IN REFUSING TO ALLOW TRU TO ESTABLISH THE SAFE HARBOR DEFENSE TRU preserved its right to object to the trial court's rejection of the safe harbor defense. Aleo Br. at 31. TRU asserted that defense in a motion in limine to preclude plaintiff from arguing that the slide was "illegal" (A.70S-II, 1701, 1703). At trial, TRU/s counsel argued an instruct on the safe harbor de, but the court rejected TRU's argument (A. 2941). There is no validity in plaintiff/s attempt to defend the trial court's action by claiming the jury could not have found that TRU/s importation of the Inflatable Slide fell within the safe harbor. TRU offered uncontroverted evidence of its arrangement with BV, which established that BV/s issuance of a certificate of compliance was a representation by a manufacturer or distributor that no regulations or standards applied to a product other than those for which BV had tested it. TRU Br. at 29. Testing that evidence was the jury, not the judge. 13

19 IV. PLAINTIFF FAILED TO OFFER PROOF OF A SAFER ALTERNATIVE DESIGN FOR THE INFLATABLE SLIDE Plaintiff fers no authority supporting his contention that a party may establish a design defect without offering proof of a safer alternative design. Aleo Br. at 39. The only Massachusetts case he cites, Smith v. Ariens Co., 375 Mass. 620, 625 (1978), held that expert testimony was not needed there because the jury's lay knowledge allowed it to conclude that protrusions on a snowmobile created an unreasonable risk that the rider could hit her head on them. rd. Nothing in Smith suggests that proof a safer alternative des complex nature is not needed where, as here, the the alleged design defect does require expert testimony. TRU Br. at And even if 1207 appli to inflatable slides, which it does not, it is not evidence of a possible alternative "design" for kind of slide. Plaintiff is also mistaken in arguing that TRU's directed verdict motions did not preserve the argument that proof a safer alternative design was needed. Aleo Br. at 38. Those motions included arguments "[t]he evidence does not warrant a finding that [defendant] was negligent" and plaintiff's 14

20 expert's testimony could not support the verdict (A.20 (Dkt. Nos ), , , ). Plaintiff's citation of Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31 (1991) is inapposite as it did not involve a design defect claim, the appellant made only an oral motion for directed verdict, and stated "no grounds" for it at all. 411 Mass. at 34. Before and after Bonofiglio, this Court has held that statements like those in TRU's directed verdict motions are specific enough to preserve error. See, ~, Dilaveris v. W.T. Rich Co., Inc., 424 Mass. 9, 11 (1996); Michnik-Zilberman, 390 Mass. at 9 n.3. V. THE STATEMENTS IN THE POLICE REPORTS AND MEDICAL RECORDS SHOULD HAVE BEEN ADMITTED There is no merit in plaintiff's argument that the statements in police reports about how Ms. Aleo was injured are inadmissible. Aleo Br. at 32. Even if the police officers later had no memory of who made the statements, the reports show on their face that the statements were made by witnesses who had just observed the accident and were under the stress of the event (A.6S0). Nor is there any merit in plaintiff's claim that similar statements in the medical records are inadmissible because they carne from "unknown 15

21 sources." Br. at 33. The medical records also show that the statements were made by witnesses who saw Ms. Aleo jump off the slide (A , ). VI. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A FINDING THAT TRU WAS GROSSLY NEGLIGENT Pla~ntiff tries to support a gross negligence finding by arguing that the jury could have concluded that TRU "did nothing" to determine compliance with Aleo Br. at That argument would fail even if 1207 could be applied. Plaintiff does not deny that TRU actually arranged for BV, a well-known and well-respected consumer product testing company, to test the Inflatable Slide; that BV tested the Inflatable Slide for compliance with a number of regulations and standards; and that BV issued a certificate to TRU representing that the Inflatable Slide complied with I of those regulations (A.3513, 3538); see so TRU Br. at 6-8, Despite this uncontroverted evidence, plaintiff claims the jury could have found that TRU "did nothing" because BV's undertaking to determine what tests were needed was not in writing. Aleo Br. at 42. Plaintiff offers no reason why such an arrangement could not have existed unless it were in writing. And 16

22 in any event I disbelief of evidence does not "'create affirmat finding.,,6 I substantial evidence in support of a Equally unavailing is plaintiff's claim that the jury could have disbel arrangement with BV existed of compliance "disclaim any that TRU's BV/s certif ibility to perform all tests," and TRU's Safety Manual "states that BV will perform only requested tests." Aleo Br. at 42. The documents to which plaintiff re are: (1) a boilerplate (and illegible) statement on one of the standard forms BV sent TRU that to "the tests requested by you" and "information that you provided to us H ; and (2) another BV standard that is included in TRU/s Safety Assurance Manual and whose boilerplate language refers to the test BV will perform. 7 Neither statement is inconsistent with the uncontroverted evidence that TRU asked BV to advise it on what tests needed to be performed. Finally, plaintiff errs in arguing that TRU waived its challenge to the sufficiency of the 6 NStar Electric Co. v. Dep't of Pub. Utilities l 462 Mass. 381, 392 (2012) {quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 67 n.21 (1977) (citing Cohen v. Bd. of Regis. in Pharm., 350 Mass (1966))). 7 (A. 3534) (Trial Exhibit 40, Safety Assurance Manual, at page 26) i (A.3555). 17

23 evidence for a di s negligence because it \'did not move verdict on the issue of gross negligence. II Br. at 41. TRU's mot for directed ct argued that the evidence could not support even a ser finding of negl The motions thus necessarily encompassed a challenge to the finding gross negligence (A , , ). And here again, the fact that the trial court conside insufficiency and rejected TRU's argument of the the evidence of gross negligence in post-trial motions further preserves the issue (A , ) i see also II(C). VII. THIS COURT'S REVIEW OF THE CONSTITUTIONALITY OF THE PUNITIVE DAMAGE AWARD MUST BE DE NOVO, AND PLAINTIFF'S CITATIONS ARE INAPPOSITE Plaintiff asserts, Aleo Br. at SO, that "[a] review of state court awards of punitive damages in personal injury and wrongful death cases" supports the "constitutionality and reasonableness tt of the punitive award in this case. s To the contrary, these cases demonstrate that much worse conduct is 8 When considering other state court punitive awards, Massachusetts courts must be mindful that Massachusetts is in the distinct minority of states that permit punitive awards for negligence. See R. Hammes & L. Nugent, Punitive Damages: A State by State Guide to Law and Practice l at 7:7 through 7:106, (West 2011). 18

24 required to support punit damages of the amount and ratio involved here. f case plaintiff cites is Union Pacific R.R. Co. v. Barber, 365 Ark. 268 (Ark. 2004), where a collided with a truck, killing the driver. rd. at 279. In assessing the "enormity of the wrong" Arkansas Court recited that: "Union Pacific was on notice of the dangerous and life threatening nature of this crossing through complaints of its own personnel and the public"; "several near-misses occurred at this crossing"; "Union Pacific consciously refused to remedy the. situatio:h"; "it ionally put the public in harm's way"; and "Union Pacific intentionally destroyed unfavorable [.]" Id. at 301. Next, plaintiff cites Wightman v. Consolidated Rail Corp., 86 Ohio St. 3d 431, 433 (Ohio 1999), where on "clear and convincing evidence... of actual mal II punitive damages were awarded against Conrail crossing accident resulting in two ter a railroad "Even after a prior to call from the police [twenty minutes crash], Conrail did not take preventative measures to avert an accident." rd. at 440. PI iff next cites another lroad crossing case, CSX Transportation, Inc. v. Palank, 743 So.2d 19

25 556, (Fla. App. 1999), a train derailment in death after "CSX had actual knowledge that the crosspin [which failed] was fective" and after "CSX filed false safety inspection reports with the FRA [Federal Railroad Administrat II Plaintiff cites two non- lroad cases, Boeken v. Phillip Morris, Inc., 127 Cal. App. 4th 1640, 1650 (Ca. App. Ct. 2005), a wrongful death case against a c manufacturer where a jury found, inter alia, "fraud by intentional misrepresentation, [and] fraudulent concealment,li and Flax v. Daimler Chrysler CorE" 272 S.W. 3d 521, , 534 (Tenn. 2008), a wrongful death case where a jury found Chrysler "acted ly such that punitive should be imposed" and Chrysler's chief engineer ordered safety commit tee records \\ destroy [ed]." What's most striking about plaintiff's citations is the marked degree of reprehensibility defendants' conduct in the face of direct of actual not and knowledge of the risk harm, which bears no relationship to TRU's conduct Supreme Court has said that "[p]erhaps important indicium of the reasonableness damages award is the degree of reprehens The most a punitive lity of the 20

26 defendant's conduct." BMW of North Ameri v. Gore, 517 U.S. 559, 575 (1996). The Court also identified negligence" as Uthe least blameworthy conduct triggering punitive liability. I' Exxon Shipping Co. v. Baker, 554 U.S. 471, 512 (2008). Even assuming arguendo that TRU's conduct amounted to gross negligence, as found by the jury, the cases from other jurisdictions involving malice, fraud and intentional conduct, are 1 ly and factually inapposite. As set forth in the preceding argument, at Section VI, TRU not only contracted with its vendors that the products supplied to it would be safe and conform to all legal requirements but also contracted to have the products, including Inflatable Slide, tes and certified as such by BV I a respected laboratory. Aleo to the contrary with yet another railroad case, it one from Massachusetts, Boyd v. National RR Passenger Corp., 446 Mass. 540 (2006). In, this Court reversed a smissal of recklessness c ims against a railroad because "[t]he evidence d[id] not suggest merely the intentional omission of ly required safety precautions" but "[r]ather, it arguably suggest [ed] 21

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