UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MS. UNDERWOOD’S MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

The Plaintiff, Jaimee Underwood (“Ms. Underwood”), through the undersigned counsel, respectfully submits the following Memorandum in Support of her Motion for Summary Judgment against  Defendants in this matter. For the reasons which follow, this Court should enter Summary Judgment on the issue of whether Defendant Fitzgerald was acting recklessly when he crashed his tractor trailer into Officer Dedman and Ms. Underwood on July 19, 2004.

OVERVIEW

The doctrines of Collateral Estoppel and/or Judicial Estoppel preclude Defendant Fitzgerald’s taking a position in this case that is contrary to the position taken by him under oath in the State criminal proceedings arising out of the same incident wherein Defendant Fitzgerald pled Guilty to Reckless Vehicular Homicide and Aggravated Assault.

FACTS

This action involves a fatality crash on July 19, 2004 on Interstate 40 East in Nashville, Tennessee. Plaintiffs contend that Defendant Fitzgerald, driving a fully loaded tractor trailer owned by Defendant Continental, crashed into Plaintiff Christy Dedman and Plaintiff Jaimee Underwood as the two women stood between their cars in the emergency lane on the inside shoulder of Interstate 40 East in Nashville, crushing the women between the cars. As a result of the crash, Officer Dedman was killed and Ms. Underwood was seriously injured. (See , Memorandum Opinion, Doc. 133, p. 1; See also , Amended Complaint (Doc. 6), Para. 5, 30, 39, 40, 41, 42; Continental Amended Answer (Doc. 29 ) Para. 5, 30, 39, 40, 41,42) (hereinafter referred to as the “Crash”)

In the wake of the Crash, Defendant Fitzgerald was Indicted by the Davidson County Grand Jury on the charges of Vehicular Homicide and Aggravated Assault. (See copy of Indictment attached as Exhibit One to the current Motion; See also the excerpt from the deposition of Defendant Fitzgerald, attached to the current Motion as Exhibit Two, at p. 393), which became the criminal proceedings styled State of Tennessee v. James L. Fitzgerald , cause no. 2005-A-38, adjudicated in the Criminal Court for the Twentieth Judicial District in Nashville, Davidson County, Tennessee. (See Transcript of the Evidence - Guilty Plea, attached to the current Motion as Exhibit Three) (the “Criminal Proceedings”) The charges stated in the Indictment were as follows:

Count One. The Grand Jurors of Davidson County, Tennessee, duly impaneled and sworn, upon their oath, present that: James L. Fitzgerald, on the 19th day of July, 2004, in Davidson County, Tennessee and before the finding of this indictment, recklessly did kill Christy J. Dedman by the operation of a motor vehicle, the killing of Christy J. Dedman being the proximate result of the James L. Fitzgerald conduct which created a substantial risk of death or serious bodily injury to a person in violation of Tennessee Code Annotated Sec. 39-13-213, and against the peace and dignity of the State of Tennessee.

Count Two. The Grand Jurors of Davidson County, Tennessee, duly impaneled and sworn, upon their oath, present that: James L. Fitzgerald, on the 19th day of July, 2004, in Davidson County, Tennessee and before the finding of this indictment, recklessly did cause serious bodily injury to Jaimee Underwood, in violation of Tennessee Code Annotated Sec. 39-13-102, and against the peace and dignity of the State of Tennessee.

(See Exhibit One to the current Motion)

On April 15, 2005, Defendant Fitzgerald filed in the Criminal Proceedings a Petition to Accept Plea of Guilty to the charges in the Indictment. (See Petition attached to the current Motion as Exhibit Four; See also Fitzgerald Depo. 307 - 313). In his Petition, Defendant Fitzgeraldstated under oath in the Criminal Proceedings that he made no claims of being “innocent” of either Count One or Count Two in the Indictment (See Exhibit Four to the current Motion, para. 22; See also Fitzgerald Depo., pp. 310 - 311). Mr. Fitzgerald reviewed the Petition with his attorney, knew what the charges in the Indictment were against him, knew the factual basis for those charges, and admitted under oath that he had done the acts stated in the Indictment, both with regard to Count One and Count Two. (Fitzgerald Depo., p. 310)

On April 15, 2005, a hearing was held in the Criminal Proceedings on Defendant Fitzgerald’s Petition to Accept Plea of Guilty and Defendant Fitzgerald testified under oath at that hearing. (See copy of transcript of said hearing attached to the current Motion as Exhibit Three). Defendant Fitzgerald stood before the honorable Steve Dozier in the Criminal Proceedings and swore under oath that the statements set forth in his Petition (Exhibit Four) were true. (See Fitzgerald Depo., p. 308). Defendant Fitzgerald was given the opportunity to litigate the issues raised in the Criminal Proceedings, but Defendant Fitzgerald chose not to litigate those issues. (Fitzgerald Depo. 393). Defendant Fitzgerald pled guilty to the charges set forth in the Indictment because Defendant Fitzgerald was guilty of the charges set forth in the Indictment. (Fitzgerald Depo. 311)

Following the hearing on Defendant Fitzgerald’s Petition, the court in the Criminal Proceedings convicted Defendant Fitzgerald of the following Class C and Class D felonies, respectively:

(See Convictions attached to the current Motion as Exhibit Five)

ARGUMENT

A.  SUMMARY JUDGMENT

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Fed. Rule Civ. P. 56(c); Meyers v. Columbia/HCA Healthcare Corp ., 341 F.3d 461, 466 (6th Cir. 2003). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the nonmoving party. Id .; Hopson v. DaimlerChrysler Corp ., 306 F.3d 427 (6th Cir. 2002).

To prevail, the non-movant must produce specific evidence that demonstrates there is a genuine issue of material fact for trial. Meyers , 341 F.3d at 466. A mere scintilla of evidence is insufficient; there must be evidence on which the jury could reasonably find for the non-movant. Id . The non-moving party may not rest on mere allegations but must set forth specific facts showing that there is a genuine issue for trial. Hopson , 306 F.3d at 432.

Both Ms. Underwood and Officer Dedman have requested punitive damages in this cause (See Doc. Nos. 6 and 46 respectively) and Ms. Underwood expects that this Court will be charging the jury in this case on the issue of punitive damages. As the Court is well aware, punitive damages may only be assessed in Tennessee if the actions at issue were fraudulent, intentional, malicious, or reckless. Hodges v. S.C. Toof & Co ., 833 S.W.2d 896, 900 (Tenn. 1992 Ms. Underwood submits that she should be granted summary judgment on the issue of whether Defendant Fitzgerald was acting recklessly on July 19, 2004.

C.  COLLATERAL ESTOPPEL, OR ALTERNATIVELY, JUDICIAL ESTOPPEL, BARS DEFENDANT FITZGERALD FROM RE-LITIGATING THE ISSUES RESOLVED IN HIS CRIMINAL CASE PURSUANT TO HIS GUILTY PLEA AND SUBSEQUENT CRIMINAL CONVICTION.

1.  Non-Mutual Offensive Collateral Estoppel

Under the judicially developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Montana v. United States , 440 U.S. 147, 153, 99 S.Ct. 970 (1979). Collateral estoppel, like the related doctrine of res judicata, serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry , 449 U.S. 90, 94, 101 S.Ct. 411 (1980). In furtherance of those policies, the Supreme Court broadened the scope of the doctrine of collateral estoppel beyond its commonlaw limits. Ibid . It did so by abandoning the requirement of mutuality of the parties, Blonder- Tongue Laboratories, Inc. v. University of Illinois Foundation , 402 U.S. 313, 91 S.Ct. 1434 (1971), and by approving the use of “offensive” collateral estoppel by a non-party to a prior lawsuit. Parklane Hosiery, Inc. v. Shore , 439 U.S. 322, 327, 99 S.Ct. 645, 649 (1979). The offensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from re-litigating an issue the defendant has previously litigated unsuccessfully in another action against the same or a different party. Parklane Hosiery, supra, at 326, n. 4.

A scenario analogous to the case at bar was before the Sixth Circuit Court of Appeals in Patrick v. South Central Bell , 641 F.2d 1192 (6th Cir. 1980) wherein the widow of a South Central Bell (“SCB”) lineman sued SCB for the wrongful death of her husband in Columbia, Tennessee. SCB filed a third party complaint seeking indemnification against the City of Columbia (“Columbia”), which in turn filed a counterclaim against SCB. The two matters were characterized by the Appellate Court as “two distinct lawsuits” and therefore were “tried in two separate parts”. 641 F.2d at 1193.

In the first suit, the jury assessed damages against SCB in favor of the widow. 641 F.2d at 1199. In the second suit, SCB attempted to establish that co-workers of the deceased lineman were negligent and therefore responsible. 641 F.2d at 1198. Rejecting SCB’s attempt to re-litigate the issue, the Court held:

. . . this very issue of Patrick’s and his crew’s negligence was litigated in the first lawsuit - Patrick v. South Central Bell - and South Central Bell is collaterally estopped from raising the issue.
Such an offensive use of collateral estoppel was discussed extensively by the United States Supreme Court in Parklane Hosiery Co. v. Shore , 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed. 552 (1979). In Parklane Hosiery Co ., the Supreme Court set down guidelines for the application of offensive collateral estoppel and granted to the trial court broad discretion in determining when it should be applied. ‘The general rule should be that in cases where a plaintiff could easily have joined in the earlier actionor where . . .  the application of offensive collateral estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.’ Parklane , at 331, 99 S.Ct. at 651.

We hold that South Central Bell’s action against Columbia Power System is an appropriate context in which to apply collateral estoppel offensively. The issues of Patrick’s and his crew’s negligence was [sic] decided implicitly in the first suit by the jury’s assessment of damages against South Central Bell in favor of Patrick’s widow. This is the very same issue which South Central sought to have re-litigated in its suit against the Power System. Secondly, South Central had a full and fair opportunity to litigate this issue in its first suit against Patrick.

641 F.2d at 1198

Ms. Underwood submits that the doctrine of collateral estoppel can and should be applied in this case and should preclude Defendant Fitzgerald’s taking a position in this case that is contrary to the position taken by him under oath in the State criminal proceedings arising out of the same factual incident. Similar to SCB in the Patrick case, Defendant Fitzgerald had a full and fair opportunity to litigate the matters set forth in the two Indictments; however, Defendant Fitzgerald chose not to do so. (See Fitzgerald Depo, p. 393) Instead, Defendant Fitzgerald testified under oath in the State criminal proceedings that all of the facts set forth in the two Indictments were true (See Defendant Depo, p. 310). After hearing the testimony of Defendant Fitzgerald, the State criminal court convicted Defendant Fitzgerald of two felonies, namely, Vehicular Homicide by Reckless Conduct and Aggravated Assault by Reckless Conduct. (See Convictions, Exhibit Five to the current Motion). Defendant Fitzgerald should be collaterally estopped from now coming into this Court and attempting to show that his conduct was anything other than the reckless conduct on which his convictions are based.

2.  Judicial Estoppel

However, even if this Court were not inclined to invoke the doctrine of collateral estoppel in an offensive setting, the doctrine of judicial estoppel should be invoked to provide the same result. Judicial estoppel prevents a party from taking a position that is contrary to one the party has asserted under oath in a prior proceeding, where the prior court adopted the contrary position “either as a preliminary matter or as part of a final disposition.” Eubanks v. CBSK Financial Group, Inc ., 385 F.3d 894, 897 (6th Cir. 2004). Judicial estoppel is an equitable doctrine that exists to protect the judicial process itself. Teledyne Indus., Inc., v. NLRB , 911 F.2d 1214, 1220 (6th Cir. 1990) Judicial estoppel preserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment. Teledyne , 911 F.2d at 1218. The purpose of the doctrine is to protect the courts “from the perversion of judicial machinery” Edwards v. Aetna Life Insurance Co ., 690 F.2d 595, 599 (6th Cir. 1982). Courts have used a variety of metaphors to describe the doctrine, characterizing it as a rule against “playing fast and loose with the courts” Scararo v. Central R.R ., 203 F.2d 510, 513 (3d Cir. 1953), “blowing hot and cold as the occasion demands”, Allen v. Zurich Insurance Co ., 667 F.2d 1162, 1167 n. 3 (4th Cir. 1982), or “having one’s cake and eating it too”, Duplan Corp. v. Deering Milliken, Inc ., 397 F.Supp. 1146, 1177 (D.S.C. 1974).

Contrasted to other forms of estoppel, judicial estoppel may apply regardless of detrimental reliance by the opposing party because it exists to protect the integrity of the courts instead of the litigants. Teledyne , 911 F.2d at 1220. Judicial estoppel is likewise not bounded by the limits of mutuality and finality that may have application in a collateral estoppel context. See e.g. Reynolds v. Commissioner of Internal Revenue , 861 F.2d 469 (6th Cir. 1988).

The applicability of judicial estoppel is determined by the Court as a matter of law. See Browning v. Levy , 283 F.3d 761, 775 (6th Cir. 2002); Smith v. Fireman’s Fund Ins. Co ., 16 F.3d 1221 (6th Cir. 1994). In order to invoke judicial estoppel, a party must show that the opponent took a contrary position under oath in a prior proceeding and that the prior position was accepted by the court. Reynolds , 861 F.2d at 472-473; Browning v. Levy , 283 F.3d 761, 775 (6th Cir. 2002).

Ms. Underwood submits that the doctrine of judicial estoppel should be relied upon by this Court to preclude Defendant Fitzgerald’s taking any position in this case that contradicts the sworn testimony given by him in the State criminal proceedings. The Indictment alleges that Defendant Fitzgerald recklessly killed Officer Dedman and recklessly assaulted Ms. Underwood. (See Exhibit One to the current motion) Defendant Fitzgerald testified under oath that he committed the acts that were set forth in the Indictment. (Fitzgerald Depo. p. 310) Further, Defendant Fitzgerald testified under oath before the State criminal court and indicated that he made “no claims of innocence” to the charges set forth in the Indictments. (See Fitzgerald Depo. p. 309; See also Exhibit Three to the current motion, para. 22) Defendant Fitzgerald has testified under oath that he pled guilty to the charges in the Indictments because he was guilty of the charges in the indictments. (Fitzgerald Depo. p. 311) As stated previously, the State criminal court accepted Defendant Fitzgerald’s testimony and thereafter convicted him of two felonies. (See Exhibits Three and Five to the current Motion)

If Defendant Fitzgerald were allowed to show that his conduct on July 19, 2004 was anything other than the reckless conduct to which he testified under oath in the State criminal proceedings, it would be just the type of “perversion” mentioned by the Court in Edwards v. Aetna Life Insurance Co ., 690 F.2d 595, 599 (6th Cir. 1982). Allowing Defendant Fitzgerald to make such an attempt would be tantamount to allowing Defendant Fitzgerald to blow “hot” one day in State court, and then “cold” the next day in Federal court, as recognized by the Court in Allen v. Zurich Insurance Co ., 667 F.2d 1162, 1167 n. 3 (4th Cir. 1982). This Court cannot allow Defendant Fitzgerald to make such a mockery of the judicial process in general or of this Court in particular.

If Defendant Fitzgerald cannot in this case contradict the facts to which he testified under oath in the State criminal proceedings (and Ms. Underwood earnestly submits that he cannot), then those facts are undisputed in this case and warrant this Court’s granting Ms. Underwood summary judgment against Defendants on the issue of Defendant Fitzgerald’s reckless conduct.

CONCLUSION

This Court should enter Summary Judgment in favor of Ms. Underwood on the issue of whether Defendant Fitzgerald was acting recklessly when he crashed his tractor trailer into Officer Dedman and Ms. Underwood on July 19, 2004.

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been served upon the following individual(s) via the Court’s electronic filing service or via first class mail, postage prepaid, on this the 19th day of July, 2005.

                   s / Larry Hayes, Jr.              
________________________________
Larry Hayes, Jr.