The Erie Doctrine and the 13th Juror Rule

On Monday, April 25, 1938, Justice Louis Dembitz Brandeis issued his last major opinion. It was Erie Railroad Company v. Tompkins, 304 U.S. 64. He and five colleagues overturned Swift v. Tyson, which had been around for almost a century and can now be found at 41 U.S. 1 (1842).

In Hughestown, Pennsylvania, at a little past midnight on Friday, July 27, 1934, Harry James Tompkins was walking home along a footpath parallel to the railroad tracks. He was struck by something protruding from a passing train and fell beneath the wheels; his right arm was severed.

A federal diversity of citizenship action was filed in the Southern District of New York. Rather than applying Pennsylvania law, which immunized the railroad for negligence less culpable than wanton, the trial court applied the federal common law standard of ordinary negligence. Tompkins was awarded $30,000. The U.S. Supreme Court reversed. Pennsylvania law controlled. On remand Tompkins netted nothing.

The Wright hornbook on Federal Courts (6th ed.) devotes six sections to the doctrine. One of sainted Irving Younger’s lectures details the lawyering involved. Every law student in America studies Erie. It is an American classic.

On Monday, June 24, 1996, Justice Ruth Bader Ginsburg issued Gasperini v. Center for Humanities Inc., 518 U.S. 415. It dealt with review of the size of jury verdicts under New York law, holding that a trial judge should perform such review. I included a brief excerpt in our seminar book that year, but I missed the significance of the opinion.

Judge Robert Murrian enlightened me three years later in Bivens v. Black, 35 F.Supp.2d 607 (E.D. Tenn. 1999). The Bivens family was rear-ended on Interstate 40 in Loudon County by drunk driver Black. Arguing that the jury shortchanged them on damages, the plaintiffs wanted Judge Murrian to act as 13th juror, reweigh the evidence, and grant a new trial. He did so.

The importance of Gasperini in practice is now clear. After a federal diversity verdict in a 13th-juror state like ours, the judge upon request in a motion for new trial must act as a second “jury” and reweigh the evidence. Consequently, even though a motion for new trial is not a condition precedent to appeal of a federal jury verdict, in contrast to Tennessee state procedure, it’s a wise idea.


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.