# Bickel v. Korean Air Lines Co.

> Court of Appeals for the Sixth Circuit · August 29, 1996 · 96 F.3d 151

URL: https://www.frixlaw.com/law-library/cases/6942032

## Case

- **Full name:** Daisy E. BICKEL, Representative for Edna Doris Miller Dorothy Jones, Estate of Joyce Chambers Willie N. James, Personal Representative of the Estate of Hazel Jeanne James, Richard A. Bowden, Individually and as Personal Representative of the Estate of Eleanor Beatrice Young Bissell, (94-1098), Michael D. Jones, Personal Representative of the Estate of Margaret Zarif, a/k/a Margaret Jones, (94-1101) v. KOREAN AIR LINES COMPANY, LTD., (93-2144/2259/2549 94-1095/1096/1100), Cross-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 29, 1996
- **Citations:** 96 F.3d 151
- **Precedential status:** Published
- **Opinion:** Dissent by Batchelder
- **Judges:** Batchelder, Brown, Merritt
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6942032

## How later opinions describe it (automated extraction)

- stating that defendant waived an issue by failing to raise it in his opening brief on appeal
- holding that defendant waived argument by failing to raise it in the opening appellate brief
- holding that arguments not fully briefed are deemed abandoned
- recognizing that arguments not briefed on appeal are waived

## Opinion text

BATCHELDER, Circuit Judge,
dissenting.
As the majority points out, when these cases first came before us, we issued an opinion in which, inter alia, we reversed the awards for pre-death pain and suffering (“pain and suffering awards”) that the plaintiffs had won at trial. Bickel v. Korean Air Lines Co., 83 F.3d 127 (6th Cir.1996). We reasoned that the Supreme Court’s recent decision in Zicherman v. Korean Air Lines, - U.S. -, 116 S.Ct. 629 , 133 L.Ed.2d 596 (1996), holding that non-peeuniary damages were not available under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq. (West 1975) (“DOHSA”), applied, as well, to the non-pecuniary damages for pre-death pain and suffering awarded in these cases.
Today, a majority of the panel reverses that decision and reinstates the awards recovered in the district court for the decedents’ pre-death pain and suffering. The majority reasons that Korean Air Lines Company, Ltd. (“KAL”), waived any argument relative to the availability of pain and suffering awards by failing to raise the argument in its opening briefs. Because I contin *157 ue to believe that DOHSA exclusively governs these cases, that DOHSA, both in its plain language and as interpreted by Zicher-man, does not provide for non-pecuniary damages, and that the pre-death pain and suffering awards at issue in these cases are non-pecuniary and, therefore, not recoverable under DOHSA, I dissent.
The majority correctly observes that in its opening briefs, KAL did not argue that pain and suffering awards were unavailable under DOHSA. The majority acknowledges that KAL appealed the sufficiency of the evidence to support the pre-death pain and suffering awards, but bears down on KAL’s failure to appeal what it terms “the propriety of allowing any such awards.” Maj. op. at 153 (emphasis in original). The majority offers two bases for its conclusion that KAL’s failure timely to raise its “propriety” claim precludes our review. First, the majority explains: “Zicherman does not address the propriety of the predeath pain and suffering damages awarded at trial in that ease, and that award stands to this day.” Id. (citing Zicherman , - U.S. at - n. 4, 116 S.Ct. at 636 n. 4). And second, Zicherman “neither added to, nor made any changes in, the law regarding the availability of nonpecuni-ary damages under DOHSA” Id. at ¶5. Therefore, the majority concludes, KAL could have argued against the availability of pre-death pain and suffering awards before Zicherman and in its opening briefs. I do not find the majority’s reasoning persuasive.
In a purely technical sense, I have no quarrel with the majority’s observation that Zicherman did “not address the propriety of the predeath pain and suffering damages awarded at trial in that case[J” Maj. op. at 153 (citing Zicherman , - U.S. at - n. 4, 116 S.Ct. at 636 n. 4). Accordingly, the propriety of such damages remains an open question for the Supreme Court to address in a future case — perhaps even this one. Until the Court renders such a ruling, however, we are bound by the principles of Zicherman , and I think that there is no getting around the flat, unambiguous holding of Zicherman that where DOHSA governs (as it, without question, does here), it governs exclusively; it provides the sole source of damages recoverable; and permits only pecuniary damages. See Zicherman, - U.S. at - - -, 116 S.Ct. at 636-37 . See also Saavedra v. Korean Air Lines Co., Ltd., 93 F.3d 547, 553 (9th Cir.1996). 1 I detect nothing by way of disagreement from the majority’s opinion; indeed, section II.B. of the original panel opinion in this ease (holding that neither loss of society nor survivor’s grief is recoverable under DOHSA) remains undisturbed. Bickel, 83 F.3d at 131-32.
Zicherman , it is true, does not directly address the propriety of pre-death pain and suffering damages. But the only plausible reading of that ease is that such damages, because they are not pecuniary damages, are not recoverable. See Saavedra, 93 F.3d at 553 , Today’s majority overlooks this point, and by doing so, avoids having to explain how KAL’s procedural default (of not raising the argument in their opening briefs) can suffice to sustain liability for pain and suffering damages where such damages are not available as a matter of law.
KAL argues, and this panel originally agreed, that, although pre-death pain and suffering awards were not squarely before the Supreme Court in Zicherman , DOHSA does not provide for such damages because they are non-pecuniary in nature. Id. at 132. Accordingly, we concluded that:
Zicherman constitutes an insuperable obstacle to an award of pain and suffering damages — clearly non-pecuniary dam *158 ages — in these cases. Thus, for the same reasons we reversed the survivor’s grief damages, we now reverse the award of pain and suffering damages.
Id.
The majority now retreats from that position, giving as its second reason for affirming the non-pecuniary damage awards for pre-death pain and suffering that:
The Zicherman opinion ... neither added to, nor made any changes in, the law regarding the availability of nonpecuniary damages under DOHSA. Thus, any argument that KAL could make based on the fact that DOHSA does not allow nonpecu-niary damages was available to it before the Court decided Zicherman , and therefore, KAL could have raised this issue in its opening briefs.
Maj. op. at 153 (emphasis in original). I cannot agree.
Zicherman , whatever else may be said of it, clarified the law relative to non-pecuniary damages available under DOHSA. “Moreover, where DOHSA applies, neither state law nor general maritime law can provide a basis for recovery of loss-of-society damages.” Zicherman , - U.S. at -, 116 S.Ct. at 636 (citations omitted). See Saavedra, 93 F.3d at 553 (noting that “[t]he Supreme Court, in holding that DOHSA cannot be supplemented by general maritime law in order to obtain loss of society damages, gave no indication that there was any material difference between loss of society damages and any other nonpecuniary damages”). I do not dispute that the relevant Supreme Court case law logically, perhaps ineluctably, led the Zicherman Court to rule as it did, but it is nevertheless not entirely accurate to characterize Zicherman as neither adding to, nor making any changes in, the law of damages available under DOHSA. But even if the majority were correct, I do not comprehend the logic of leaving these non-pecuniary damage awards to stand when such awards, as the majority implies, have not been available directly under DOHSA for years. 2
Assuming arguendo that Zicherman “neither added to, nor made any changes in, the law regarding the availability of nonpecuni-ary damages under DOHSA[,]” maj. op. at 153; but see Saavedra, 93 F.3d at 550 (observing that “[m]any of the issues raised before [the Ninth Circuit] were resolved for the first time in ... Zicherman ”), still Zich-erman made it crystal clear that where DOHSA governs, it governs exclusively. Zicherman , - U.S. at -, 116 S.Ct. at 636 . And because where DOHSA governs, it governs exclusively, on the facts of the case before us (where DOHSA unquestionably governs) no pre-death pain and suffering damages are available, for such damages are non-pecuniary in nature. See Saavedra, 93 F.3d at 552-554 .
Although KAL did not squarely aver in its opening briefs that pain and suffering awards were not available under DOHSA, I would permit it to make that claim in light of the reasoning in Zicherman . I would do so, because this is one of those extraordinary cases in which the contrary result cannot be squared with applicable Supreme Court precedent. See United States v. Chesney, 86 F.3d 564, 567-68 (6th Cir.1996) (noting that we have discretion to review an issue not properly preserved for direct appeal in “exceptional cases or particular circumstances,” and exercising the discretion to square the ruling in the ease with recent, relevant Supreme Court precedent).
After carefully reviewing the majority’s opinion, I have little doubt that the majority and I do not disagree very much about the harshness of the result in this case if DOH- *159 SA were to be exclusively applied. But as a federal judge, and not a federal legislator, I am bound to apply DOHSA, not as may seem “just” to me, but as it is written, and as it has been interpreted by the highest judicial authority in the land. See, e.y., The FEDERALIST No. 78, at 468-49 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 3 And there is simply nothing in the language of DOHSA and nothing in Zicherman (or any other case to which the majority points) that leads me to believe there is any principled way to avoid the conclusion that there is no basis in the law for the pre-death pain and suffering awards which today’s majority upholds. Yet, the majority defaults KAL and holds that it must pay damages that are not available as a matter of law. In doing so, the majority rests its judgment not even on the shifting sands of its understandable desire to do equity in these eases. Rather, the majority constructs this judgment “upstairs above a vacant lot.”
. The Ninth Circuit in Saavedra recently had occasion to consider the availability of pre-death pain and suffering damages in cases such as the ones presently before us. Building upon the reasoning of Zicherman , as well as the conclusion we originally reached in these cases, the Ninth Circuit held in a thoughtful opinion that pre-death pain and suffering awards were neither available under DOHSA, nor under a general maritime survival theory. See Saavedra, 93 F.3d at 552-554 . Although KAL unquestionably challenged the availability of pre-death pain and suffering awards when it initially argued its case before the Ninth Circuit, see id. at 550 , that court’s conclusion in Saavedra only underscores the peculiarity of the holding embraced by the majority here. Implicitly, Saavedra reaffirms that the awards reinstated by the majority are not based on any form of damages created by an act of legislative discretion or otherwise permissible judicial fiat. I admit that I am somewhat mystified how the majority opinion can, as it does, let Saavedra pass, entirely without mention.
. As cases cited in the majority opinion indicate, pain and suffering damages in cases such as the ones before us have not been available directly under DOHSA, but have rested on some other source of law. See maj. op. at 153 n. 1 (and authorities collected therein). See also Solomon v. Warren, 540 F.2d 777, 792 (5th Cir.1976) (permitting recovery for decedent's pain and suffering on the theory that state law provides a cause of action for such damages), cert. dismissed, 434 U.S. 801 , 98 S.Ct. 28 , 54 L.Ed.2d 59 (1977); Favaloro v. S/S Golden Gate, 687 F.Supp. 475, 480 (N.D.Cal.1987) (permitting recovery for decedent's pain and suffering on the theory that general maritime law provides a cause of action for such damages); In re Air Crash Disaster Near Honolulu, Haw., on Feb. 24, 1989, 783 F.Supp. 1261, 1265 (N.D.Cal.1992) (permitting recovery for decedent’s pain and suffering on the theory that the Warsaw Convention provides a cause of action for such damages). As the Ninth Circuit recently pointed out, however, Zicherman precludes such “supplemental" damages awards. See Saavedra, 93 F.3d at 554 .
. As Hamilton observed:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved anything would prove that there ought to be no judges distinct from that body.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6942032. Public record. Not legal advice.