IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

DONNA L. EARLY, ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CASE NO.: 2:06cv727 

 ) 

RHEEM MANUFACTURING ) 

COMPANY, a corporation and CAL ) 

MEARS, an individual, ) 

 ) 

 Defendants. ) 

ANSWER TO COMPLAINT

 COMES NOW Defendant Rheem Manufacturing Company (hereinafter “Rheem”) and 

answers the Complaint as follows: 

1. Rheem admits only that Plaintiff seeks to invoke the Uniformed Services 

Employment and Re-Employment Rights Act (USERRA), but denies that it has violated such 

statute and denies that Plaintiff is entitled to any relief there under. 

I. JURISDICTION AND VENUE

2. Rheem admits only that this Court has subject matter jurisdiction with respect to 

the Plaintiff’s claims under USERRA and the Employee Retirement Income Security Act of 

1974 (ERISA) and that this Court has in personam jurisdiction over the parties. The remaining 

allegations of paragraph 2 of the Complaint are denied. 

3. Rheem denies the allegations of paragraph 3 of the Complaint. In further 

response to paragraph 3 of the Complaint Rheem states that Plaintiff’s state law claims are 

barred under ERISA’s doctrine of preemption. 

4. Rheem denies the allegations of paragraph 4 of the Complaint, but admits that 

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Plaintiff’s place of employment with Rheem was its manufacturing plant located in the Middle 

District of Alabama. 

II. PARTIES

5. Rheem admits that Plaintiff is a black female adult over the age of 19 years and

admits on information and belief that she is a resident of Montgomery County, Alabama. 

6. Rheem admits that it is qualified to do business in the State of Alabama and that it 

has an office located in Montgomery County, Alabama. 

7. Rheem admits that Defendant Cal Mears (“Mears”) has been employed by Rheem 

since March 1, 2004 and, that Mears’ known interactions with Plaintiff were within the scope of 

his employment as Rheem’s Employee Relations Representative. 

III. FACTUAL BACKGROUND

8. The allegations contained in paragraph 8 are denied. Rheem admits that it hired 

Plaintiff on April 2, 1993 and that Rheem deemed her to have resigned effective December 21, 

2005 after she had been out of work since August 12, 2004 (over 16 months). Plaintiff had been 

absent from work for other prior periods of time after hired by Rheem. The remaining 

allegations of paragraph 8 of the Complaint are denied. 

9. The allegations of paragraph 9 are denied. In further answer to paragraph 9, 

Rheem states that Plaintiff received short-term disability coverage (“STD”) throughout her 

employment at Rheem without needing to effect it and at no cost to her. Plaintiff enrolled in 

Rheem’s voluntary long-term disability coverage plan (“LTD”) during an open enrollment 

period for Rheem hourly employees with coverage to take effect in May 2004. 

10. The allegations of paragraph 10 are denied. In further answer to paragraph 10, 

Rheem states that Plaintiff was covered by Rheem’s defined benefit pension plan for hourly 

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employees at the Montgomery plant (“Pension Plan”) throughout her employment at no cost to

her. Plaintiff elected to participate in Rheem’s 401K plan effective October 1, 1995 while absent 

from work. 

11. Upon information and belief, Rheem admits that Plaintiff applied for benefits 

under Rheem’s STD plan. Rheem lacks sufficient information to admit or deny whether Plaintiff 

filed for LTD benefits. In further answer to paragraph 11, Rheem states that both the STD and 

LTD plans which Plaintiff references are insurance plans offered and administered by 

independent insurance companies not affiliated with or controlled by Rheem, therefore, Rheem 

did not determine Plaintiff’s eligibility for benefits under either plan. 

12. Upon information and belief, Rheem admits that Plaintiff applied for and received 

STD benefits covering the period August 16, 2004 to October 3, 2004. Rheem states upon 

information and belief that the insurance carrier discontinued Plaintiff’s STD benefits because

she failed to provide sufficient medical documentation to support her application[s] for benefits. 

13. Upon information and belief, Rheem admits the allegations of paragraph 13 of the 

Complaint but states that the insurance carrier denied Plaintiff’s application for LTD, not Rheem. 

14. Rheem is without sufficient information to determine the truthfulness of the 

allegations in paragraph 14 of the Complaint; therefore, they are denied pending verification in 

discovery. 

15. Rheem is without sufficient information to determine the truthfulness of the 

allegations in paragraph 15 of the Complaint; therefore, they are denied pending verification and 

discovery. 

16. The vague allegations in paragraph 16 are denied. No monies were deducted 

from Plaintiff’s paycheck for STD which was provided to her as a benefit of her employment at 

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no cost. No monies were deducted from Plaintiff’s pay with respect to Rheem’s Pension Plan 

which is funded entirely by Rheem without employee contributions. Rheem admits that payroll 

deductions for premiums for voluntary LTD insurance coverage were made commencing with

the paycheck she received on or about May 14, 2004 through her last paycheck on August 13, 

2004. All allegations of paragraph 16 of the Complaint not specifically admitted are denied. 

17. Rheem denies the allegations of paragraph 17 of the Complaint. 

18. Rheem admits that Plaintiff remained out of work for an extended period 

allegedly as a result of the injury alleged in paragraph 17 of the Complaint, but Rheem denies the 

allegations of paragraph 18 concerning the exact duration of Plaintiff’s absence from work

pending verification in discovery and Company attendance records. 

19. Rheem admits that on or about June 11, 2001, Plaintiff furnished a letter from her 

doctor allowing her to return to work under certain restrictions. 

20. The allegations contained in paragraph 20 are denied. Plaintiff was allowed to

return to work at Rheem on June 25, 2001, after Rheem consulted with her doctor and identified 

a position consistent with her medical restrictions. (See composite Ex. 1) 

21. The allegations contained in paragraph 21 are denied. Upon receiving Plaintiff’s 

letter of June 11, 2001, Rheem undertook to identify a suitable position for Plaintiff consistent 

with the medical restrictions imposed by her doctor. This was accomplished and Plaintiff 

returned to work on Monday, June 25, 2001. 

22. Rheem admits that on or about April 6, 2004 (not April 1st), Plaintiff suffered an

injury to her left hand at work. 

23. The allegations contained in paragraph 23 are denied. 

24. The allegations contained in paragraph 24 are denied pending verification in 

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discovery. 

25. Rheem admits that, over many years, Plaintiff submitted certain notes and excuses

relating to doctor visits, but denies that after July 2004 Plaintiff submitted sufficient, 

understandable documentation to enable Rheem to identify a suitable position consistent with her 

then medical restrictions. 

26. The allegations contained in paragraph 26 are denied. On or about July 7, 2004, 

Plaintiff presented a medical restrictions summary from one of her physicians which imposed

new work restrictions. These new restrictions stated that Plaintiff could use her right hand, but 

totally restricted any use of her right arm. Rheem attempted in earnest to identify a job 

consistent with these new, confusing and self-contradictory restrictions, but Plaintiff claimed she

was unable to perform any of the jobs Rheem assigned to her. After Plaintiff objected to all of

the jobs Rheem suggested, Rheem told Plaintiff that it could not identify a suitable position for 

her without clarification from her doctor of her new confusing and apparently contradictory 

medical restrictions. Rheem asked Plaintiff on several occasions to obtain clarification of her 

restrictions, but each time Plaintiff refused to cooperate. (See composite Ex. 2). Plaintiff told 

Rheem that she was not going to ask her doctor to clarify her status, Plaintiff also told Rheem 

that she was seeking disability status from the military so she could not be activated with her 

National Guard unit. Plaintiff never provided the requested clarification and never returned to 

work. Instead she applied for STD on or about September 7, 2004. 

27. The allegations contained in paragraph 27 are denied. 

28. The allegations contained in paragraph 28 are denied. Mears told Plaintiff that 

Rheem needed clarification from her physicians regarding her of her new confusing and 

apparently contradictory medical restrictions in order to identify a suitable position for her, but 

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she refused to cooperate. Mears did not tell Plaintiff that Rheem did not have any light duty 

work. 

29. The allegations contained in paragraph 29 are denied. Rheem admits that Alfred

Gardner, its Human Resources Manager, telephoned Plaintiff on or about December 21, 2005, 

under the belief that Plaintiff had abandoned her employment and had no intention of returning 

(at that point, Plaintiff had not worked in 16 months, longer than a full year and longer than any 

of her prior absences) and informed her that Rheem considered her to have voluntarily resigned.

(See Ex. 3). 

IV. STATEMENT OF CLAIMS

CLAIM ONE - VIOLATION OF UNIFORMED SERVICES 

EMPLOYMENT AND RE-EMPLOYMENT RIGHTS ACT 

30. The allegations of paragraph 30 of the Complaint are denied except as specifically

admitted above. 

31. The allegations of paragraph 31 of the Complaint are denied. 

32. The allegations contained in paragraph 32 are denied. 

33. The allegations contained in paragraph 32 are denied. Plaintiff was allowed to

return to work on June 25, 2001, after providing proper documentation from her doctor as to the 

restrictions under which Plaintiff could return to work and after Rheem and the involved doctors 

identified a position consistent with her medical restrictions. 

34. The allegations contained in paragraph 34 are admitted. 

35. The allegations contained in paragraph 35 are denied. 

36. The allegations contained in paragraph 36 are denied. 

37. The allegations contained in paragraph 37 are denied. Rheem admits that it has

received certain medical slips, excuses and other medical documentation concerning Plaintiff,

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but denies ever having possessed all of Plaintiff’s medical records. 

38. Rheem does not understand the allegations of paragraph 38, therefore, such 

allegations are denied. 

CLAIM TWO - VIOLATION OF ERISA 

39. The allegations contained in paragraph 39 of the Complaint are denied except as

specifically admitted hereinabove. 

40. Rheem admits only that Plaintiff was a participant in the Pension Plan at no cost

to her throughout the term of her employment. Rheem also admits that the Pension Plan and 

Plaintiff’s claims with respect to it are governed by ERISA. Rheem denies the remaining 

allegations of paragraph 40 of the Complaint. 

41. The allegations contained in paragraph 41 are denied. Rheem states that the terms

of the actual Pension Plan documents, which speak for themselves, base benefit eligibility on age

and years of service. 

42. The allegations contained in paragraph 42 are denied. 

43. The allegations contained in paragraph 43 are denied. 

44. The allegations contained in paragraph 44 are denied. 

45. The allegations contained in paragraph 45 are denied. 

46. The allegations contained in paragraph 46 are denied. 

47. The allegations contained in paragraph 47 are denied. 

48. The allegations contained in paragraph 48 are denied. 

49. The allegations contained in paragraph 49 are denied. 

50. The allegations contained in paragraph 50 are denied. In further answer to

paragraph 50 of the Complaint, Rheem states that Plaintiff received STD coverage at no cost to

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her throughout her employment. Plaintiff enrolled in Rheem’s voluntary LTD plan during an 

open enrollment period in 2004. 

51. Rheem admits only that Plaintiff sustained a work related injury to her left hand

(finger[s]) on or about April 6, 2004 and that shortly thereafter she returned to work under 

medical restrictions imposed by her authorized treating physician. Plaintiff recovered from this

injury and it is not related to any issue in this action. Plaintiff received workers’ compensation

medical benefits for this injury in the ordinary course of events without incident. The remaining 

allegations of paragraph 51 are denied. 

52. The allegations contained in paragraph 52 are denied. In further answer to

paragraph 52, Rheem states that determinations of Plaintiff’s eligibility for STD and LTD 

benefits were made independently by the insurance carrier. 

53. The allegations contained in paragraph 53 are denied. 

54. The allegations contained in paragraph 55 are denied. 

55. The allegations contained in paragraph 55 are denied. Rheem admits only that 

Plaintiff obtained LTD insurance coverage during an open enrollment period in May 2004 and 

that she paid premiums for that coverage via a standard payroll deduction plan from May 2004 to 

August 2004. The remaining allegations of paragraph 55 are denied. 

56. Rheem admits only that Plaintiff paid monthly premiums for LTD insurance

coverage from May 2004 to August 2004. The remaining allegations of paragraph 56 of the 

Complaint are denied. 

57. The allegations contained in paragraph 57 are denied. 

58. The allegations contained in paragraph 58 are denied. 

59. The allegations contained in paragraph 59 are denied. 

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60. The allegations contained in paragraph 60 are denied. 

61. The allegations contained in paragraph 61 are denied. 

62. The allegations contained in paragraph 62 are denied. 

63. The allegations contained in paragraph 63 are denied. 

64. The allegations contained in paragraph 64 are denied. 

CLAIM THREE - NEGLIGENT HIRING, SUPERVISION 

AND TRAINING 

65. All allegations of paragraph 65 of the Complaint are denied, except as specifically

admitted. 

66. The allegations contained in paragraph 66 are denied. All of Plaintiff’s state law

claims are preempted by ERISA. 

67. The allegations contained in paragraph 67 are denied. 

CLAIM FOUR - NEGLIGENT RETENTION 

68. All allegations of paragraph 68 of the Complaint are denied except as specifically

admitted. 

69. The allegations contained in paragraph 69 are denied. All of Plaintiff’s state law

claims are preempted by ERISA. 

70. The allegations contained in paragraph 70 are denied. 

CLAIM FIVE - NEGLIGENCE 

71. All allegations of paragraph 71 of the Complaint not specifically admitted above, 

are denied. 

72. The allegations contained in paragraph 72 are denied. All of Plaintiff’s state law

claims are preempted by ERISA. 

73. The allegations contained in paragraph 73 are denied. 

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74. The allegations contained in paragraph 74 are denied. 

75. All allegations of the Complaint not specifically admitted above are hereby

denied. 

76. Rheem denies that it has violated any law and denies that Plaintiff is entitled to

any recovery or relief whatsoever, including that requested in her PRAYER FOR RELIEF. 

AFFIRMATIVE DEFENSES

FIRST DEFENSE 

The statute of limitations bars some or all of Plaintiff’s claims against Rheem.

SECOND DEFENSE

Plaintiff has failed to timely or fully exhaust her administrative remedies under USERRA 

and ERISA. 

THIRD DEFENSE 

Some or all of Plaintiff’s claims fail to state claims for which relief can be granted. 

FOURTH DEFENSE

There are no similarly situated employees of Rheem who have been treated 

differently than has Plaintiff. 

FIFTH DEFENSE 

Plaintiff has failed to mitigate her damages, if any.

SIXTH DEFENSE 

All employment decisions made by Rheem respecting Plaintiff were made for legitimate, 

non-discriminatory, non-pretextual business reasons. Rheem denies that neither Plaintiff’s 

membership in the Alabama National Guard nor her status as a participant in any Employee 

Benefit Plan was a substantial contributing factor in any material decision regarding her 

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employment. 

SEVENTH DEFENSE

Plaintiff is estopped and lacks clean hands to seek the equitable relief she requests due to 

violation of Rheem’ employee conduct and work rules including, but not limited to poor 

performance and excessive unexcused absenteeism. 

EIGHTH DEFENSE 

Rheem states that it did not intentionally, willfully or maliciously violate any statute or 

law relied upon in the Complaint. To the extent that Plaintiff’s claims against Rheem rest on

conduct that was innocent or without malice or without reckless indifference to Plaintiff’s rights,

punitive damages are not recoverable. 

NINTH DEFENSE 

An award of punitive damages in this case is not appropriate.

TENTH DEFENSE

To the extent that Plaintiff’s claims are fraudulently brought, they are barred.

ELEVENTH DEFENSE 

To the extent that Plaintiff’s claims have been waived, they are barred. 

TWELFTH DEFENSE 

To the extent that Plaintiff might have been guilty of conduct, as yet unknown to Rheem 

which conduct would have prevented Plaintiff’s employment or caused discharge, she is barred

from seeking some or all damages. 

THIRTEENTH DEFENSE 

Plaintiff complains about decisions made by different decision-makers. 

FOURTEENTH DEFENSE 

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The doctrine of laches bars some or all of Plaintiff’s claims. 

FIFTEENTH DEFENSE 

Defendant pleads judicial estoppel and lack of standing as to Plaintiff’s claims. 

SIXTEENTH DEFENSE 

Rheem pleads the “same actor” defense.

SEVENTEENTH DEFENSE 

Plaintiff is not entitled to recover any compensatory damages or punitive damages herein, 

and any allegations with respect thereto should be stricken, because Plaintiff has failed to plead 

facts sufficient to support such damages. 

EIGHTEENTH DEFENSE 

With respect to all of Plaintiff’s claims, Defendant pleads, in the alternative and without

waiving any other defense, that the acts of Rheem were privileged under the law including, but 

not limited to, under the employment-at-will doctrine. 

NINETEENTH DEFENSE 

Plaintiff voluntarily abandoned her employment. 

TWENTIETH DEFENSE 

To the extent Plaintiff seeks recovery for any work related injury covered by Alabama 

Workers’ Compensation laws, the court lacks subject matter jurisdiction. 

TWENTY-FIRST DEFENSE 

Rheem pleads contributory negligence, failure to cooperate, assumption of the risk, last 

clear chance, waiver and the statute of frauds. 

TWENTY-SECOND DEFENSE 

Plaintiff has represented that she is totally disabled and is estopped to assert otherwise in 

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this action. 

TWENTY-THIRD DEFENSE 

Plaintiff’s State law claims are barred by the doctrine of ERISA Preemption. 

TWENTY-FOURTH DEFENSE

USERRA does not apply to the facts of this case. 

TWENTY-FIFTH DEFENSE

Plaintiff is estopped to obtain the relief she requests because, among other things, she 

refused to obtain clarification of her new and confusing medical restrictions and to cooperate 

with Rheem’s efforts to identify a suitable job for her. 

TWENTY-SIXTH DEFENSE 

Plaintiff has not engaged in service in the Uniformed Services at any time material to this

action. 

TWENTY-SEVENTH DEFENSE 

Plaintiff has not been absent from her position of civilian employment because of service 

in the Uniformed Services. 

TWENTY-EIGHTH DEFENSE 

Plaintiff did not notify Rheem in advance of any pending military service and furnished

no Orders with respect thereto. 

TWENTY-NINTH DEFENSE 

Plaintiff failed to return to work or seek reemployment within five (5) years of having 

performed service in the military services, if any. 

THIRTIETH DEFENSE 

Plaintiff failed to timely return to work or apply for reemployment after service in the 

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Uniformed Services, if any. 

THIRTY-FIRST DEFENSE 

Rheem pleads that it is impossible and/or unreasonable to reinstate Plaintiff due to her 

medical restrictions, her refusal to make good faith effort to perform jobs assigned to her and her 

refusal to provide clarification of her new and confusing medical restrictions. 

THIRTY-SECOND DEFENSE 

In the alternative, Rheem pleads that Plaintiff’s service in the Uniformed Services, if any, 

was thirty (30) days or less; therefore, Plaintiff had no protection against discharge. 

THIRTY-THIRD DEFENSE 

Rheem terminated Plaintiff for cause. Rheem would have made the same employment

decision regardless of Plaintiff's protected and/or military status. 

THIRTY-FOURTH DEFENSE 

If and to the extent Plaintiff did render service in the Uniformed Services in August of 

2000 as alleged in the Complaint, Rheem fulfilled its obligation to reinstate Plaintiff on or about 

June 25, 2001 when Plaintiff returned to work under restrictions imposed by her medical doctor. 

Plaintiff was not removed from Rheem’s payroll until December 21, 2005, more than five (5) 

years after Plaintiff claims to have rendered service in the Uniformed Services. 

THIRTY-FIFTH DEFENSE 

Rheem cannot reasonably accommodate Plaintiff’s service related injury, because

Plaintiff is unable or unwilling to perform any gainful position at Rheem with or without a

reasonable accommodation. 

THIRTY-SIXTH DEFENSE 

Rheem reserves the right to assert other defenses as discovery proceeds. 

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CONSTITUTIONAL DEFENSES

FIRST CONSTITUTIONAL DEFENSE 

Any award of punitive damages and/or damages for mental anguish or emotional distress 

would violate the constitutional safeguards provided under the Constitution of the United States

and of the various states, including the Constitution of the State of Alabama. 

SECOND CONSTITUTIONAL DEFENSE

Any award of punitive damages and/or damages for mental anguish or emotional distress 

to Plaintiff would violate the constitutional safeguards provided under the Constitution of the 

United States and the Constitution of the State of Alabama in that the determination of such

damages under the applicable state law is vague, is not based on any objective standards, and is 

not rationally related to legitimate government interests. 

THIRD CONSTITUTIONAL DEFENSE

Plaintiff’s claims for punitive damages violate the separation of powers requirement of

the constitutions of the various states, by allowing courts and juries, rather than a legislature, to 

determine what conduct constitutes punishable conduct and the amount of punishment therefore. 

FOURTH CONSTITUTIONAL DEFENSE

Plaintiff’s claims for punitive damages violate the Fourth, Fifth, Sixth, Seventh, Eighth, 

and Fourteenth Amendments of the Constitution of the United States on the following grounds: 

a. It is a violation of the Due Process and Equal Protection 

Clauses of the Fourteenth Amendment of the United States 

Constitution to impose punitive damages, which are penal 

in nature, against a civil defendant upon Plaintiff’s 

satisfying a burden of proof which is less than the “beyond 

a reasonable doubt” burden of proof required in criminal 

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cases; 

b. The procedures pursuant to which punitive damages are 

awarded and the guidelines given to jurors are vague and 

ambiguous and fail to provide specific standards on the 

determination of whether to award punitive damages or 

specific standards as to a constitutionally reasonable limit 

on the amount of any award against defendants, which 

thereby violates the Due Process Clause of the Fourteenth

Amendment of the United States Constitution;

c. The procedures pursuant to which punitive damages are 

awarded are vague and ambiguous and fail to provide 

specific standards for the amount of the award of punitive 

damages which allows jurors broad, unlimited and 

undefined power to make determinations based on passion, 

personal beliefs and/or uninformed ideas of what the law 

permits, rather than what the law requires; 

d. The procedures pursuant to which punitive damages are 

awarded result in the imposition of different penalties for 

the same or similar acts and, thus, violate the Equal 

Protection Clause of the Fourteenth Amendment of the 

United States Constitution; 

e. The procedures pursuant to which punitive damages are 

awarded permit the imposition of punitive damages in 

excess of the maximum criminal fine for the same or 

similar conduct, which thereby infringes on the Due

Process Clause of the Fifth and Fourteenth Amendments 

and the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution;

f. The procedures pursuant to which punitive damages are 

awarded may result in the award of joint and several 

judgments against multiple defendants for different alleged 

acts of wrongdoing, which infringes on defendants’ Due 

Process and Equal Protection rights under the Fourteenth 

Amendment of the United States Constitution;

g. Any award of punitive damages to Plaintiff would violate

the Self-Incrimination Clause of the Fifth Amendment of 

the United States Constitution, because punitive damages 

are penal in nature, yet a defendant may be compelled to 

disclose potentially incriminating documents and evidence; 

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h. Plaintiff’s attempt to impose punitive or extra contractual 

damages on defendants on the basis of the conduct of 

others violates the Fifth, Eighth, and Fourteenth 

Amendments of the United States Constitution;

i. Any award of punitive damages to Plaintiff would violate

the procedural safeguards provided to defendants under the 

Sixth Amendment of the United States Constitution in that 

punitive damages are penal in nature, and consequently, a

defendant in a case in which punitive damages are sought 

should be entitled to the same procedural safeguards

accorded to a defendant in a criminal proceeding; 

j. Plaintiff’s Complaint, to the extent that it seeks exemplary 

or punitive damages, violates defendants’ rights to 

protection from “excessive fines” as provided in the Eighth 

Amendment of the United States Constitution;

k. Plaintiff’s Complaint, to the extent that it seeks exemplary 

or punitive damages, violates defendants’ right to 

substantive due process as provided in the Fifth and 

Fourteenth Amendments of the United States Constitution

and as provided in the Constitution of the various states; 

l. Plaintiff’s claims for punitive damages violate equal 

protection as guaranteed by the Fourteenth Amendment to

the United States Constitution; and 

m. Any award of punitive damages would violate defendant’s

right to trial by jury in violation of the Seventh Amendment 

to the Constitution of the United States. 

FIFTH CONSTITUTIONAL DEFENSE 

Plaintiff’s claims for multiple and/or punitive damages and/or damages for mental 

anguish/emotional distress violate due process as guaranteed by the Fifth and Fourteenth 

Amendment to the United States Constitution in that: 

a. there is no requirement that punitive damages be 

reasonably proportionate to any element of compensatory 

damages; 

b. there is no requirement that punitive damages; 

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c. review of punitive damage awards for excessiveness 

without objective proportionality requirements and other

objective requirements is wholly personal and subjective; 

d. punitive damages instructions insufficiently inform the jury

as to the nature and purpose of punitive damages and the

instructions are not saved by a post trial review at the trial 

and/or appellate levels; 

e. the preponderance of the evidence standard of proof, where 

applicable, is not high enough to satisfy due process where 

a defendant faces a punitive damage award; 

f. the criteria for an award of punitive damages and/or 

damages for mental anguish/emotional distress are 

impermissibly vague and uncertain; 

g. the criteria for review of an award of punitive damages 

and/or damages for mental anguish/emotional distress on 

appeal are impermissibly vague and uncertain; and 

h. the jury is instructed that punitive damages are permitted to 

set an example to deter others and/or otherwise relate to the

conduct of others or the conduct of a defendant outside the 

scope of this litigation, subjecting a defendant to potential 

for multiple penalties for the same conduct, and/or to

penalties for the conduct of others. 

SIXTH CONSTITUTIONAL DEFENSE 

With respect to Plaintiffs’ demand for punitive damages, defendant specifically

incorporates by reference any and all standards or limitations regarding the determination, 

review and/or enforceability of punitive damage awards which arose in BMW of No. America v. 

Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L.Ed.2d 809 (1996); Cooper Industries, Inc., v. 

Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); and in 

State Farm Mut. Auto. Ins. Co., v. Campbell, 123 S. Ct. 1513 (2003). 

SEVENTH CONSTITUTIONAL DEFENSE

The imposition of punitive damages against any of the Defendants in this case would 

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violate the Defendants’ due process rights as guaranteed by the United States Constitution,

because the award of punitive damages is excessive in light of the following criteria: (1) the

degree of reprehensibility of the defendants’ alleged wrongful conduct; (2) the disparity between 

the harm or potential harm and the punitive damage award; and (3) the difference between the

punitive damage award and the civil penalties authorized or imposed in other cases. 

EIGHTH CONSTITUTIONAL DEFENSE 

Imposition of punitive damages against this defendant would have a chilling effect upon 

the defendant’s right to open access to the courts of this state, in violation of the United States 

Constitution.

NINTH CONSTITUTIONAL DEFENSE 

The procedures pursuant to which punitive damages are awarded subject civil defendants

to punishment for the conduct of others through vicarious liability or through non-apportionment 

of damages among joint tortfeasors, in violation of the Fifth and Fourteenth Amendments to the 

United States Constitution. 

TENTH CONSTITUTIONAL DEFENSE 

Plaintiff is not entitled to recover punitive damages because Plaintiff cannot prove that 

defendants’ conduct involved such malice, wantonness, oppression, fraud, willfulness, 

recklessness, or wickedness as amounts to criminality, which for the good of society and warning 

to the individual ought to be punished. 

ELEVENTH CONSTITUTIONAL DEFENSE 

Plaintiffs' claims for punitive damages should not be submitted to the jury because, under 

the United States Supreme Court's holding in Cooper Industries, Inc. v. Leatherman Tool Group, 

Inc., 533 U.S. 424, 121 S. Ct. 1678, 149 L.Ed. 2d 674 (2001), and the Alabama Supreme Court's

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holding in Horton Homes, Inc. v. Brooks, 832 So. 2d 44 (Ala. 2001), the issue of punitive 

damages is not a question of fact to be decided by a jury. See also, Gasperini v. Center for

Humanities, Inc., 518 U.S. 415, 459, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). 

TWELFTH CONSTITUTIONAL DEFENSE 

An award of mental anguish damages in this case will violate this defendant's due process

and equal protection rights guaranteed by the United States Constitution because juries are not 

given any rules, standards, or guidelines upon which to rely in calculating mental anguish or 

emotional distress damage awards. 

THIRTEENTH CONSTITUTIONAL DEFENSE 

To award plaintiff damages for alleged mental anguish or emotional distress in the 

absence of any standards for the determination of mental anguish and/or the absence of any 

requirements for corroborating or objective evidence of mental anguish or emotional distress 

makes such an award tantamount to punitive damages. As such, this defendant avers that such an 

award in this case would violate the United States Constitution. 

Respectfully submitted, 

s/Henry C. Barnett, Jr. 

HENRY C. BARNETT, JR. (BAR037) 

ATTORNEY FOR DEFENDANTS 

OF COUNSEL: 

CAPELL & HOWARD, P. C. 

150 South Perry Street 

Post Office Box 2069 

Montgomery, Alabama 36104 

(334) 241-8000 

(334) 323-8888 

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CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of September 2006, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of 

such filing to the following: 

Trina S. Williams

Vicky U. Toles 

TOLES & WILLIAMS, LLP 

1015 South McDonough Street 

Montgomery, Alabama 36104 

s/Henry C. Barnett, Jr. 

OF COUNSEL 

1076740 

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