Petition — Arnold v. Eastern Air Lines, Inc.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

RICHARD ARNOLD, IV

AND FRANCIS C. MIHALEK,

Petitioners,

EASTERN AIR LINES, INC.,

Respondent,

UNITED STATES OF AMERICA,

Third-Party Defendant.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Gary S. Hemric

William K. Diehl, Jr.

JAMES, McELROY & DIEHL, P.A.

700 Home Federal Building

139 South Tryon Street

Charlotte, N.C. 28202

Telephone: 704/372-9870

Counsel for Petitioners

Questions Presented

1. May a Circuit Court of Appeals properly convene itself for

rehearing en banc under 28 U.S.C. §46(c) where the vote on the

petition for rehearing by the ten regular, active judges of the Cir-

cuit produces five votes in favor and four votes against rehearing

with the tenth judge not voting because of recusal?

2. Whether the convening of the Circuit Court for rehearing en

banc of a matter which clearly does not involve either securing or

maintaining uniformity of decisions within the Circuit or some ques-

tion of exceptional legal importance constitutes an abuse of the en

banc power such as to vitiate the judgment rendered by the Circuit

Court?

TABLE OF CONTENTS

Page

a ees yep sh ob 4k asses eevee. i

a ee 2

ER EU nas ciewis'c Sb aisccsceececes ese 2

oa bale buvees 6vo.be8 2

elias wc ob cas seccsensccess 3

TE SGC ashi bcbsveséstscsesevcsees 3

Th 8

I. This Court is the final arbiter of the differing interpreta-

tions of 28 U.S.C. §46(c) which are producing irrecon-

cilable decisional conflicts among the circuit courts in

the exercise of the en banc power ............... 8

A. Conflict between the Fourth Circuit in this case and

the decision by the Sixth Circuit in Clark v.

American Broadcasting Company, Inc., 684 F.2d

1208 (1982), cert. denied, __. U.S. ___, 75

L.Ed.2d 792 (No. 82-1288, March 21, 1983) .. 10

B. An apparent decisional conflict in the interpretation

of §46(c) between the Fourth and Ninth Circuits and

decisions of the Second, Third, Seventh and D.C.

Circuit Courts; confusion concerning the majority

LP ahaa sisinls.e e406 pieces cess 11

C. Conflict between the decision by the Fourth Circuit

here and this Court's holding in Shenker v. Baltimore

& Ohio R.R. Co., 374 U.S. 1 (1963) ........ 14

II. In Petitioners’ case, the Fourth Circuit Court of Appeals

abused the limited legitimate purposes of the en banc

rehearing power to substitute the decision of a tenuous

majority for that of the panel judgment, for reasons

unrelated to the effective administration of the law or

I oo ce br sep bb eeeee vee . 16

TABLE OF CONTENTS

(Cont'd.)

Page

SIE sa pals ia Wak vs hoa Gd Aa awe Re hae ve eee 22

Appendix A—Judgment of district court in Arnold v. Lxstern

Air Lines, Inc. vy. United States of America . la

Appendix B— Judgment of district court in Mihalek v. Eastern

Air Lines, Inc. vy. United States of America . \b

Appendix C— Memorandum of decision of district court de-

nying motions for new trials ............. Ic

Appendix D—Panel opinion of the Court of Appeals for the

DOT ECENOE: «OSS i weed ae eee co ees

Appendix E— Order of Court of Appeals for the Fourth Cir-

cuit granting rehearing en banc ...........

Appendix F— En banc opinion of the Court of Appeals for the

Fourth Circuit and dissenting opinions .....

TABLE OF CITATIONS

Cases: Page

Boyd v. Lefrak Organization, 517 F.2d 918 (2nd Cir. 1975) 11

Church of Scientology of California v. Foley, 640 F.2d 1335

ee ee Ce NS, ce ave b Ow sab ec Rede 17

City of Cleveland v. Peter Kiewit Sons’ Company, 624 F.2d

I ies OU og hes 55 sob dv as eadee cman eee 20

Clark v. American Broadcasting Co. , 684 F.2d 1208 (6th Cir.

1982) cert. den. us. ... , 75 L.Ed.26 792 (mo.

ee CEE RROD S455, 5.04.05 0's apae ae aoe ed 10

Copper and Brass Fabricators Council, Inc. v. Department of

Treasury, 679 F.2d 951 (D.C. Cir. 1982) rehearing denied,

unpublished order no. 81-2091 (August 3, 1982) ..... 12

Curtiss-Wright Corp. v. General Electric Company, 599 F.2d

St ME, OPIN caaTooka 0 cn dels vam'neces a

Ford Motor Company vy. Federal Trade Commission, 673 F.2d

ee CS PUN lg 5 Sy ty wi wo hw a a Renal 12

Moody v. Albemarle Paper Company, 417 U.S. 622 (1974) 9

Porter County Chapter of Isaac Walton League v. Atomic Energy

Commission, 515 F.2d 513 (7th Cir. 1978) rev'd on other

grounds, sub nom. Northern Indiana Public Service Com-

pany \. Porter County Chapter of Isaac Walton League,

Se RE RTO 6 cris ccasv ec cavaNue weaneens 12

Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1 (1963)

ee EN ES OR a eR Es aa aR ee a I 8,14,15,16

Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326

NO ee rete ei earindbwn - a4 Keren redone 8,9

United States v. American-Foreign Steamship Corp. , 363 U.S.

REE Gite 2 a Nan eincee Rega oid eae ew eee 9, 13, 17

Western Pacific Railroad Corp. v. Western Pacific Railroad,

Ps eT CU kek nk ashanexacanxeraaen 9, 13

Zahn v. International Paper Company, 469 F.2d 2033 (2nd Cir.

1972) aff'd on other grounds, 414 U.S. 291 (1973). 11, 12

‘

United States Laws and Statutes: Page

Act of October 20, 1978, Pub. L. 95-486, 92 Stat 1629

CII os '0's oh. 0) 0 'd nw ep ates wk ert 8 le eas 12

The Federal Courts Improvement Act of 1982, Pub. L. 97-164,

Dae QOD 6 5.e Gk sae Ba ee 12

ee UE eG. bik rts oneness Ri, 2e. Se Fe ee ie) es ae

13, 14, 15, 16, 17, 22, 23

Rule 35, Federal Rules of Appellate Procedure ........ ef

Rule 16(a) of the U.S. Court of Appeals for the Eighth Circuit

CEE Mela « sia o's ays. ane nalacatee oldie ke eae 12

Miscellaneous:

1973 Report of the Proceedings of the Judicial Conference of

Pl CE NOD case csceneksostacneemaeeeenrene 12

1980 Annual Report of the Director, Administrative Office of

mR se ree ee 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

RICHARD ARNOLD, IV

AND FRANCIS C. MIHALEK,

Petitioners,

Vv.

EASTERN AIR LINES, INC.,

Respondent,

Vv.

UNITED STATES OF AMERICA,

Third-Party Defendant.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners Richard Arnold, IV and Francis C. Mihalek respect-

fully pray that a writ of certiorari issue to the United States Court

of Appeals for the Fourth Circuit to review whether that Circuit

Court has complied with 28 U.S.C. §46 (c) by convening an en

banc court when less than a majority of all the regular, active judges

of that Circuit have voted to do so, and to review the en banc judg-

ment itself which reverses, on tenuous grounds unrelated to the

resolution of any intra-circuit conflict or proceeding of exceptional

legal importance, the panel opinion which affirmed district court

jury verdicts favorable to Petitioners.

Citations to Opinions Below

The judgments entered by the District Court upon jury verdicts

and the memorandum of decision denying motions by Respondent

for new trials are printed in Appendices A, B and C hereto, infra,

at pp. la, 1b and Ic, but have not been reported. The judgment

of the panel of the Court of Appeals for the Fourth Circuit appears

in Appendix D, infra, at p. 1d and has been reported at 681 F.2d

186. The judgment entered after rehearing en banc is printed in

Appendix F, infra, at p. If but has not yet been reported.

Jurisdiction

The judgment of the panel of the Court of Appeals for the Fourth

Circuit was entered on June 4, 1982. Respondent timely filed a peti-

tion for rehearing and suggestion for rehearing en banc. On

December 23, 1982, the Circuit Court entered its Order tentative-

ly granting rehearing en banc subject to further consideration and

order after argument by the parties. Appendix E, infra, at p. le.

Rehearing en banc was held on February 8, 1983 and on July 8,

1983 the Fourth Circuit Court of Appeals entered its judgment, af-

firming its right to sit en banc and reversing per curiam by a vote

of five to four the earlier panel judgment. The mandate of the cir-

cuit court was stayed for thirty days by Order entered July 29, 1983

and this stay was extended for an additional thirty days by Order

entered August 23, 1983. This petition for a writ of cértiorari is

being filed within ninety days after July 8, 1983 and before

September 27, 1983, the date through which the stay of the man-

date has been ordered by the circuit court.

Jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).

Questions Presented

1. May a Circuit Court of Appeals properly convene itself for

rehearing en banc under 28 U.S.C. §46(c) where the vote on the

petition for rehearing by the ten regular, active judges of the Cir-

cuit produces five votes in favor and four votes against rehearing

with the tenth judge not voting because of recusal?

2. Whether the convening of the Circuit Court for reheariag en

banc of a matter which clearly does not involve either securing or

maintaining uniformity of decisions within the Circuit or some ques-

tion of exceptional legal importance constitutes an abuse of the en

banc power such as to vitiate the judgment rendered by the Circuit

Court?

Statutes Involved

28 U.S.C. §$6(c):

Cases and controversies shall be heard and determined by a court

or panel of not more than three judges, unless a hearing or rehear-

ing before the court in banc is ordered by a majority of the circuit

judges of the circuit who are in regular active service. A court in

banc shall consist of all circuit judges in regular active service.

Rule 35(a) of the Federal Rules of Appellate Procedure:

When Hearing or Rehearing in Banc Will be Ordered. A majori-

ty of the circuit judges who are in regular active service may order

that an appeal or other proceeding be heard or reheard by the court

of appeals in banc. Such a hearing or rehearing is not favored and

ordinarily will not be ordered except (1) when consideration by the

full court is necessary to secure or maintain uniformity of its deci-

sions, or (2) when the proceeding involves a question of exceptional

importance.

Statement of The Case

This case grows out of the crash of Eastern Air Lines, Inc.

(hereinafter **Eastern’’) flight number 212 on September 11, 1974

near Charlotte, North Carolina. Petitioners Arnold and Mihalek were

among the ten survivors of the fiery crash; seventy-two other

passengers and crew members were killed. Petitioners filed suit in

1976 in the Western District of North Carolina, invoking jurisdic-

tion under 28 U.S.C. §1332(a)(1) by virtue of diversity of citizen-

ship between them as citizens of South Carolina and Eastern, a

citizen of Florida. Their claims against Eastern were consolidated

with other survivors’ and decedents’ actions under the authority of

Multi-District Litigation docket number 202.

Petitioners’ complaints alleged claims for compensatory damages

on account of the severe physical and emotional injuries which they

sustained as a consequence of the crash and also sought an award

of punitive damages upon the basis of both gross negligence by the

pilots and willful conduct by Eastern management in ignoring a

alleged had existed for several years preceding the 212 crash and

was the root cause of that tragedy.

Eastern admitted liability for compensatory damages, denied any

responsibility for punitive damages and filed a third-party complaint

against the United States of America, alleging that the air traffic

controllers who were on duty on the morning of September 11, 1974

failed to warn the Eastern pilots of their unauthorized deviation from

a normal approach altitude moments before the DC-9 airplane crash-

ed approximately three and one-half miles from the runway at

Douglas Municipal Airport. Eastern sought contribution from the

government with respect to the amount of money damages to be

paid Petitioners for their injuries.

In February 1977, the Aetna Casualty & Surety Company and

eighteen other insurance carriers which had contracted to provide

liability and physical property damage coverage for the benefit of

Eastern filed suit in the Western District of North Carolina

(hereinafter referred to as ‘‘the Aetna case’’) against the United

States of America and the four individual air traffic controllers who

were in the control tower at the time of the crash. That action sought

contribution or indemnity with respect to the approximately

$22,000,000 which those insurance companies had previously paid

in settlements of passenger injury and death claims and for the

destruction of the airplane.

On November |, 1977, the District Court entered an Order con-

solidating for purposes of discovery and trial the six remaining

lawsuits arising out of the crash ten pending before the Court, in-

cluding Petitioners’ claims, a wrongful death action (Helen Rae

Weston, as Executrix of the Estate of Lewis M. Weston vs. Eastern

Airlines, Inc.; hereinafter ‘‘Weston’’) and the Aetna case.' The

November |, 1977 Order indicated+that the consolidation of trial

would be subject to reconsideration after the completion of

discovery, upon ‘‘timely proper showing.’’ (J.A.? I, p. 192).

In a number of pre-trial rulings and memoranda after that initial

Order, the District Court reiterated its intention to conduct a single,

consolidated trial of all matters arising from the crash. An Order

‘Under the terms of the Multi-Distnet Litigation consolidation, this District Court

had overseen proceedings in a number of other cases arising out of the crash and,

in the spring of 1976, had conducted the trial of several wrongful death claims

involving the issues of compensatory and punitive damages. All of those claims

were resolved short of jury verdict

*Citations to ''J.A. |, Il, etc.” are to the multi-volume Joint Appendix filed

in the Court of Appeals for the Fourth Circuit. Citations to ‘Appendix A"’ or

other alphabetically designated appendices refer to the Appendix to this Petition

of August 24, 1979 states:

I intend to have only this one more trial on all the fact

issues in these cases . . .. I do not intend to have any

separate trials later on the issues between the original

defendants on the one hand and the airline [sic] controllers

on the other. That case will be disposed of in the same

factual inquiry.

(J.A. I, p. 233).

Twelve days before trial, Eastern and the plaintiffs in the Aetna

case filed motions seeking a severance of the trial of Petitioners’

claims from the Aetna case upon the grounds that revelation of the

fact of Eastern’s liability insurance coverage to the jury might pre-

judice its defense on the issues df compensatory and punitive damage

entitlement. In the exercise of its discretion under F.R.C.P. Rule

42, the District Court determined that any potential prejudice to

Eastern was far outweighed by the risk of inconsistent adjudica-

tions of the common factual and legal issues present in the con-

solidated casts, in addition to the practical burden upon parties,

witnesses and judicial resources which separate trials would have

meant. The request for severance was denied and trial was scheduled

to begin on November 5, 1979.

The decision by the District Court not to sever was one of the

principal grounds for appeal by Eastern and was specifically ad-

dressed by the majority opinion of the panel of the Fourth Circuit

Court of Appeals:

The risks of prejudice and possible confusion as iden-

tified by the Appellants were obvious ones which in the

exercise of a sound judicial discretion the district court

was obliged to weigh. See Molever vs. Levenson, 539

F.2d 996 (4th Cir. 1976). Failure carefully to consider

them and the alternative procedures advanced by Ap-

pellants as a means of avoiding them may well have con-

stituted an abuse of discretion. But the record shows that

they were carefully weighed, both in absolute terms and

in relation to countervailing considerations also necessary

to sound decision.

681 F.2d at 193 (Appendix D, p. 6d).’

rThe dissent from the panel opinion by Murnaghan J. agreed that consolida-

tion was ‘theoretically poper,”’ 681 F 2d at 207, but this view was abandoned

The trial of Petitioners’ claims and the Aetna case consumed

four weeks. On November 29, 1979, after seventeen hours of

deliberation, the jury announced its verdict which awarded Arnold

$3,027,500, Mihalek $1,137,500 and the executrix Weston

$847,000 in actual damages but which declined to award punitive

damages. The air traffic controllers were absolved of any fault in

causing the crash, a conclusion which was consistent with the District

Court's judgment in favor of the government in that aspect of the

Aetna case brought under the Federal Tort Claims Act, 28 U.S.C.

§1346(b), in which the court served as trier-of-fact.

On December 8, 1979, Eastern filed motions under F.R.C.P. Rule

59 for new trials in Petitioners’ and the Weston cases solely as to

the amount of compensatory damages. One of the grounds

enumerated in those motions was a concern that certain statements

and arguments made by counsel for Petitioners during the trial and

particularly during the course of final argument had inflamed the

jury and had improperly affected the amount of compensatory

damages given Petitioners. Eastern never contended that the amount

of the jury awards represented an improper compromise of the com-

pensatory and punitive damage issues, ‘‘[T]here is no basis in the

record or in the events at the trial to support the theory that the

jury's verdict in these cases resulted from a compromise of the ac-

tual damages issues and the issue of Eastern’s liability for punitive

damages.’ (Eastern’s brief in support of motions for new trials;

J.A. 1, p. 452).

The District Court denied the motions for new trials and entered

its judgment upon the jury verdicts in favor of Petitioners and Weston

on January 22, 1980. (Appendices A, B and C, infra, at pp. la,

1b and ic).

Eastern appealed to the United States Court of Appeals for the

Fourth Circui:. A three-judge panel of that court rendered its judg-

ment on June 4, 1982, affirming by vote of two to one the compen-

satory dariage awards rendered to Petitioners. 681 F.2d 186; (Ap-

pendix D, infra, at p. 1d). With respect to the contention by Eastern

by the time the en banc judgment of the Circuit Court of Appeals was announced.

(Appendix F, infra, at p. 12f).

“The Weston case is not included in this petition and the judgment of the district

court is not printed in the Appendix. Weston was unanimously reversed by the

panel of the Fourth Circuit and no petition for rehearing was filed. (Appendix

D, at p. 28d).

that the jury's deliberations had been improperly influenced by the

argument and comments of Petitioners’ counsel, the majority agreed

that certain portions of the argument were either technically im-

proper or offensive. Of more critical importance said the majority

was whether, in the factual context of this case and the particular

circumstances of the questioned arguments, actual prejudice to

Eastern could be shown to have occurred. In deciding whether there

was a reasonable probability that the conduct complained of im-

properly influenced the jury in reaching its verdict, the majority

concluded:

The theoretical possibility that either alone or in

cumulative effect these [improper arguments] may have

exerted some generally improper influence on the jury's

deliberations cannot be gainsaid. To find this a reasonable

probability, however, would denigrate a jury whose ob-

vious care in deliberating on this case over a period of

some seventeen hours strongly belies even the possibili-

ty that its reason and its will to obey its mandate could

have been subverted by such uninspired flights of

invective.

681 F.2d at 199 (Appendix D, at p. 16d).

Eastern filed a petition for rehearing and suggested that the rehear-

ing be en banc. On December 23, 1982, the Court of Appeals entered

its Order (Appendix E, infra, at p. le) , describing the circumstances

of the vote on the petition and tentatively granting rehearing en banc.

Of the ten regular, active judges of the Fourth Circuit, five voted

in favor of rehearing, four voted against and one judge did not vote

because of recusal.*

F hearing en banc was held on February 8, 1983. By its per

curiam judgment entered July 8, 1983, the Circuit Court announc-

ed the results of that rehearing:

[1] the 5-4 vote of the ten circuit judges of the Fourth

Circuit constituted a determination by a majority to

grant rehearing en banc under 28 U.S.C. §46(c); and

SOne of the ten regular, active circuit judges who voted against rehearing en

banc subsequently took senior status after the vote had been taken but before it

was announced by the Court. The possible impact of that fact upon the determina-

tion of what constitutes a majority sufficient to convene the Circuit Court en banc

was specifically not considered or decided in the judgment entered by the Fourth

Circuit on July 8 1983. (Appendix F, infra, at 4f).

[2] by vote of five to four, the judgments of the District

Court in Petitioner's personal injury actions were

reversed and remanded for retrial as to the amount

of compensatory damages.

The original panel dissent by Circuit Judge Murnaghan became

the rationale for the en banc reversal on the merits. In strongly-

worded dissents, two circuit judges registered disagreement with

the method by which the circuit court convened itself en banc,

respecting both the interpretation of 28 U.S.C. §46(c) and the

legitimacy of the exercise in this particular case. (Appendix F at

pp. 13f and 23f).

Reasous for Gianting the Writ

The proper and consistent implementation of 28 U.S.C. §46(c)

by the Circuit Courts of Appeals in uie exercise of the en banc power

is an important matter of federal law which this Court has careful-

ly monitored for over forty years. There presently exists among

the circuits a direct decisional conflict concerning what constitutes

‘‘a majority of the regular, active judges of the circuit’’ for pur-

poses of convening an en banc court when one or more circuit judges

recuses himself from voting on a petition for rehearing en banc.

In addition, the result reached by the Fourth Circuit Court of Ap-

peals in Petitioners’ case is arguably in conflict with this Court's

holding in Shenker vs. Baltimore & Ohio R.R. Co., 374 U.S 1

(1963). This Court should grant Petitioners’ writ of certiorari in

order to provide authoritative guidance to the circuit courts on this

recurring aspect of federal procedural law.

POINT I

This Court is the final arbiter of the differing interpretations

of 28 U.S.C. §46(c) which are producing irreconc!\#ile decisional

conflicts among the circuit courts in the exercise of the en banc

power.

The genesis of the authority by which the circuit courts of ap-

peals convene for en banc hearings and rehearings was this Court's

decision in Textile Mills Securities Corp. vs. Commissioner, 314

U.S. 326 (1941). In resolving a conflict between the Third and Ninth

Circuits, this Court sanctioned utilization of the en banc power tc

provide ‘‘more effective judicial administration.’’ 314 U.S. at 335.

Congress codified the en banc procedure by enacting, in 1948,

28 U.S.C. §46(c) (hereinafter ‘'§46(c)'’) in a form which then

provided:

Cases and controversies shall be heard and determined

by a court or division of not more than three judges,

unless a hearing or rehearing before the court in banc

is ordered by a majority of the circuit judges of the cir-

cuit who are in active service. A court in banc shall con-

sist of all active circuit judges of the circuit.

The operative language describing the method by which hearing

or rehearing en banc may be authorized has not been changed by

Congress in the ensuing thirty-five years, save for the addition of

the word ‘‘regular’’ before ‘‘active service’’ by amendment in 1963.

On four occasions since the decision in Textile Mills, this Court

has granted certiorari to resolve specific questions as to the correct

interpretation of §46(c).° In the Western Pacific Railroad Case,

supra, while stating that §46(c) was a grant of power to a circuit,

which ‘‘vested [it] with a wide latitude of discretion to decide for

itself just how that power shall be exercised.’’ 345 U.S. at 259,

this Court specifically reserved unto itself the right to monitor the

exercise of that discretion:

If §46(c) is to achieve its fundamental purpose, certain

fundamental requirements should be observed by the

Courts of Appeal. In the exercise of our ‘‘general power

to supervise the administration of justice in the federal

courts’’ the responsibility lies with this court to define

these requirements and insure their observance.

345 U.S. at 260 (footnote omitted).

The time has come for this Court to once more exercise its general

*The Western Pacific R.R. Case, 345 U.S. 247 (1953), construing the 1948 en

banc statute as a grant of power to the circuit courts to order such hearings and

to establish a procedure for the exercise of the power, Shenker vs. Baltimore &

Ohio R.R. Co., 374 U.S. 1 (1963), holding that the procedure for handling en

banc petitions is a matter of discretion for the circuit courts; United States vs.

American-Foreign S.S. Corp., 363 U.S, 685 (1960), holding that a retired circuit

judge is ineligible to participate in rehearing en banc; and Moody vs. Albemarle

Paper Company, 417 U.S. 622 (1974), holding that a senior judge who sat on

a case initially was ineligible to vote on the question of whether to grant rehearing

en bane,

supervisory power to consider an aspect of §46(c) which has spawned

a conflict of decisional results among the circuit courts. The issue

is how a ‘‘majority of the circuit judges of the circuit’’ necessary

to order en banc rehearing is determined when one or more other-

wise regular, active judges recuses himself from voting on a peti-

tion, More specifically, should the total number of ‘‘regular, ac-

tive judges of the circuit’’ from among whom the necessary ma-

jority of §46(c) must come be reduced by the non-inclusion of the

recused judge?

A. Conflict Between the Fourth Circuit in this Case and the

Decision by the Sixth Circuit in Clark vs. American Broad-

casting Company, Inc., 684 F.2d 1208 (1982), cert. denied,

U.S. —__._ , 7§ L.Ed.2d 792 (No. 82-1288, March 21,

1983).

In Petitioners’ case, the Fourth Circuit construed §46(c) as re-

quiring the exclusion of the recused circuit judge from the calcula-

tion of the majority necessary to order en banc rehearing. Thus,

affirmative votes by only five of the ten regular, active circuit judges

provided the basis for the Order granting the en banc rehearing of

February 8, 1983. (Appendix E, at p. 2e). The Fourth Circuit

premised its authority for this interpretation of §46(c) upon the

language of the statute itself. (Appendix F, at pp. 4-6f). There is

no rule in the Fourth Circuit concerning the general procedure for

voting on a petition for rehearing en banc or the impact upon the

majority formulation resulting from the recusal of one or more cir-

cuit judges,

In a factually identical situation, a contrary result was reached

by the Sixth Circuit Court of Appeals in Clark vs, American Broad-

casting Company, Inc., supra, There, a grant of summary judg-

ment by the district court was reversed by a two to one majority

of the panel which heard the appeal. A timely petition for rehear-

ing and suggestion for rehearing en banc was filed and the petition

was initially granted. Approximately six weeks later, the Sixth Cir-

cuit withdrew its earlier Order as having been entered ‘‘in error,”’

explaining ‘‘that in fact the 5-4 vote (one active judge being dis-

qualified) failed to attain the 6 affirmative votes required to con-

stitute ‘a majority of the [10] circuit judges who [were] in regular,

active service’ within the meaning of Rule 35(a) of the Federal Rules

of Appellate Procedure.'’684 F.2d at 1226 (citations omitted).

Rehearing en banc was thus denied despite the affirmative vote of

five of the ten regular, active judges of the Sixth Circuit.

American Broadcasting Co. petitioned for a writ of certiorari.

On March 21, 1983 this Court denied that petition, thereby leav-

ing intact the Sixth Circuit's interpretation of the majority require-

ment of §46(c). Without improperly inferring significance to this

Court's denial of that petition, if the decision by the Fourth Circuit

to exclude the recused judge from the majority formulation is not

corrected by summary reversal at this juncture, Petitioners submit

that there presently exists an irreconcilable decisional conflict bet-

ween the Clark case and the result obtained by the Fourth Circuit

here. Without resort to any rule of procedure, both circuits inter-

preted the majority requirement of §46(c) in the context of a 5-4-1

vote and reached diametrically opposite results.

Consistent with its general supervisory power over the administra-

tion of justice in the federal system and its demonstrated willingness

to interpret §46(c) for the circuit courts and the litigants who ap-

pear there, this Court should grant Petitioners’ writ of certiorari

to address this narrow question of federal law and resolve the deci-

sional conflict which now exists.

B. An Apparent Decisional Conflict in the Interpretation of

§$46(c) between the Fourth and Ninth Circuits and Decisions

of the Second, Third, Seventh and D.C. Circuit Courts;

Confusion Concerning the Majority Requirement.

The decision by the Fourth Circuit to proceed with rehearing en

banc despite less than an absolute numerical majority of that cir-

cuit’s judges having voted to do so is in conflict with the result reach-

ed by the Second, Third, Seventh and D.C. Circuits when those

courts were faced with a similar factual situation.

In Zahn vs. International Paper Company, 469 F.2d 2033 (2d

Cir. 1972), aff'd on other grounds, 414 U.S. 291 (1973), a peti-

tion for rehearing was considered by the eight regular, active judges

of the circuit. One judge disqualified himself and the remaining

judges split 4-3 in favor of rehearing. Rehearing was denied for

lack of ‘‘an affirmative vote ‘by a majority of the circuit judges

of the circuit who are in regular, active service.’ '’ 469 F.2d at

1040, citing §46(c).’

’That literal interpretation of §46(c) was reiterated by the Second Circuit in Boyd

vs. Lefrak Organization, §17 F.2d 918 (1975).

In addition to the Second Circuit, a clear majority of the other

circuit courts of this nation follow a literal reading of the majority

requirement of §46(c). Curtiss-Wright Corp. vs. General Electric

Company, 599 F.2d 1259 (3d Cir. 1979) (rehearing denied with

four votes in favor, three against and two judges not participating);

Copper and Brass Fabricators Council, Inc. vs. Department of

Treasury, 679 F.2d 951 (D.C. Cir. 1982), rehearing denied, un-

published order number 81-2091 (August 3, 1982) (five votes to

rehear, three opposed, two judges not participating); Porter Coun-

ty Chapter of Isaac Walton League vs. Atomic Energy Commission,

515 F.2d 513 (7th Cir. 1978) (rehearing denied where four judges

voted in favor, three voted against and one took no part), rev'd on

other grounds, sub nom. Northern Indiana Public Service Com-

pany vs. Porter County Chapter of Isaac Walton League, 423 U.S.

123 (1975).

The Ninth Circuit apparently convenes to rehear matters en banc

only when a majority of its regular, active and non-disqualified

judges vote to do so. Ford Motor Company vs. Federal Trade Com-

mission, 673 F.2d 1008, 1012, n. 1 (1982) (Reinhardt, J. dissen-

ting). The Eighth Circuit has adopted a specific rule defining the

constituency of eligible circuit judges from among which the re-

quired majority must come.*

In the year following Zahn, supra, the Judicial Conference of

the United States recommended to Congress a change in §46(c)

which would ‘‘make clear that a majority of judges in regular, ac-

tive service who are entitled to vote should be sufficient to en banc

a case.’' 1973 Report of the Proceedings of the Judicial Conference

of the United States 47. The Conference report acknowledged that

as the statute existed in 1973, ‘‘if a judge disqualified himself there

must still be a majority of the entire membership voting for en banc

sitting."’ Jd. at 47. No congressional action was taken to imple-

ment that suggested modification of §46(c).

Since 1973, Congress has seen fit to twice amend §46(c), Pub.L.

95-486, 92 Stat. 1629 (1978) and Pub.L. 97-164, 96 Stat. 25 (1982),

*Rule 16(a) of the U.S. Court of Appeals for the Eighth Circuit (1981) pro-

vides, **{A] majority of the judges . . . in regular, active service who are active-

ly participating in the affairs of the court and who are not disqualified in the par-

ticular case or controversy may order a. . . rehearing en banc . . .."’ Petitioners

are informed that this Rule grew out of a situation in the Eighth Circuit in which

a regular, active circuit judge was due to illness occasionally prevented from tak-

ing an active role in the affairs of the court.

but on both occasions nothing was done to alter the language re-

quiring a majority of all the regular, active circuit judges to order

rehearing en banc.* This Court has previously described §46(c) as

being ‘‘not without ambiguity.’’ Western Pacific R.R. Case, supra,

at 267. However, the legislative history reflects satisfaction by Con-

gress with that specific portion of the statute which, in straightfor-

ward terms, provides that rehearing en banc may not be had unless

a numerical majority of all regular, active circuit judges votes to

do so. ‘*There is nothing in the history of the legislation to indicate

that these words should be understood to mean anything else than

what they say.’’ American-Foreign S.S. Corp., supra, 363 U.S.

at 688-89 (in that instance, this Court interpreted an ‘‘active’’ judge

as being ‘‘a judge who has not retired from regular, active service’’).

Five circuit courts of this nation have read §46(c) in cases com-

ing before them and have consistently concluded that a numerical

majority derived from all the regular, active judges of the circuit

is a prerequisite to the valid exercise of the en banc power. The

Ninth Circuit would seem to permit the exclusion of disqualified

or abstaining circuit judges from the process by which the en banc

court is convened. By its decision in Petitioners’ case, the Fourth

Circuit clearly would require such an approach.

Surely the discretion vested in the circuits to determine for

themselves the format for the exercise of the en banc power is not

so broad as to permit such diametrically opposed interpretations

of §46(c) to co-exist in a unitary system of federal justice. Had Peti-

tioners’ case arisen in the Second, Third, Sixth, Seventh, or D.C.

Circuits and a similar 5-4-1 vote on the petition for rehearing en

banc occurred, under the decisional policy of those circuits no

rehearing would have been allowed and Petitioners would still have

the benefit of their jury verdicts. The Fourth Circuit has read the

identical federal statute and concluded that it was authorized to pro-

ceed with rehearing en banc, a process by which the ultimate reversal

of the panel opinion was achieved.

Such a disparity of interpretation of $46(c) will inevitably pro-

duce for many other litigants in many other cases a confusing and

"The legislative prerogative for amending §46(c) has heen acknowledged by this

Court, *'[I}ndeed, the Judicial Conference of the United States has approved sug-

gested legislative changes that would provide such an exception, and a bill to amend

the statute has been introduced in Congress, but this only serves to emphasize

that if the statute is to be changed, it is for Congress, not us, to change it."

American-Foreign SS. Corp., supra, 363 U.S. at 690-91.

uneven application of the standard by which their verdicts may be

affected by the en banc power of the circuit courts of this nation.

Such a result runs contrary to the very purpose of the en banc power

as Originally contemplated by this Court:

The principal utility of determinations by the courts of

appeals en banc is to enable the court to maintain its in-

tegrity as an institution by making it possible for a ma-

jority of its judges always to control and thereby to secure

uniformity and continuity in its decisions . . ..

American-Foreign S.S. Corp., supra,

at 689-90 (quoting from Maris,

Hearings and Rehearings in Banc, 14

F.R.D. 91, 96 (1954),

The disparity in interpretation of §46(c) can only be resolved by

this Court's exercise of the general supervisory power in the vehi-

cle of Petitioners’ case.

C. Conflict Between the Decision by the Fourth Circuit Here

and This Court’s Holding in Shenker vs. Baltimore & Ohio

R.R. Co., 374 U.S. 1 (1963).

A third and equally important reason why this Court should grant

Petitioners’ writ is the fact that this Court may very well have

previously decided that §46(c) requires an absolute numerical ma-

jority of circuit judges to grant rehearing en banc and thus, the ac-

tion by the Fourth Circuit in proceeding without such a majority

would be in direct conflict with the authority of this Court. Circuit

Judge Widener, writing in dissent from the action taken by his fellow

judges, concluded that the holding in Shenker is irreconcilably at

odds with the result reached by the Fourth Circuit:

In Shenker, the Supreme Court affirmed a decision of

the Third Circuit which required an affirmative vote of

an absolute majority of the active members of the court

and which did not require each member of the court to

vote on petitions for rehearing en banc. At the time

Shenker filed his petition for rehearing en banc, eight

judges were in active service. Four of the eight voted

to nshear the case; two voted not to rehear; and two abs-

taine( for reasons that do not appear either in the Supreme

Court's or the Court of Appeals’ opinion. On this vote,

the Third Circuit denied the petition for rehearing en banc

and the Supreme Court found no error in the denial.

* * * *

In the first place, so far as } can ascertain, there was no

rule in the Third Circuit except a near literal copying

of the words of the statute. It was merely a practice of

that circuit which was given effect by decision in the

Shenker case. Thus, the decision of the Third Circuit was

that an absolute majority was required, and this was af-

firmed by the Supreme Court. Both the holding of the

Third Circuit and the Supreme Court are entirely con-

sistent with the wording of the statute. . . . [T]he fact

situation presented to the Supreme Court in Shenker is

the same as presented to us here. Since the Shenker case

offered a perfect opportunity for the Supreme Court to

adopt the view the majority now does, and it did not do

so, I suggest that, because the adoption of the majority

view here would have changed the result of the Shenker

case, the Supreme Court has rejected the position the ma

jority now embraces.

Appendix F at pp. 15-16f (footnote

omitted; this conclusion was shared

by Phillips, J who wrote a separate,

compelling dissent, Appendix F at p.

23f).

This Court is fully cognizant of what its decision in Shenker

represents and the implications of that holding for the purpose of

deciding whether the Fourth Circuit has either ignored or

misunderstood that decision. In Petitioners’ view, all the reasonable

inferences of the factual setting of the denial of en banc rehearing

by the Third Circuit and this Court's affirmation of that result sup-

port a conclusion that Shenker expressly decided that §46(c) requires

an absolute majority of circuit judges to order en banc rehearing,

regardless of how many of the judges may choose not to vote on

a particular petition.

It [§46(c)] vests in the court the power to order hearings

in banc. It goes no further. It neither forbids nor requires

each active member of a Court of Appeals to entertain

each petition for a hearing or rehearing in banc. The court

is left free to devise its own administrative means whereby

a majority may order such a hearing.

374 U.S. at 4-5, citing Western Pacific

R.R. Case, supra, 345 U.S. at 250

(emphasis added).

Petitioners contend that this excerpt from Shenker means that a

litigant may not be heard to complain if his petition for rehearing

simply fails to garner support from a majority of a// the regular,

active circuit judges, even if more than half of those who do vote

favor rehearing. Simply put, §46(c) does not require a majority of

circuit judges to vote against a petition for rehearing for it to be

denied.

In reaching its decision in Shenker, the Third Circuit relied upon

a literal reading of §46(c) as its rationale for requiring an absolute

majority. With no different starting point, the Fourth Circuit has

concluded -- by excluding for purposes of computing that majority

the recused Judge Ervin, who was in all other respects a regular,

active judge of the circuit -- that less than an absolute majority is

sufficient to convene for en banc rehearing. Those two views of

the same statutory provision simply cannot be harmonized.

If Shenker ii: fact represents this Court's answer in the negative

to the question raised by Petitioners at the threshold of their peti-

tion (see p. 2, supra), then the appropriate action to be taken by

this Court is the granting of certiorari and summary reversal of the

en banc judgment of the Fourth Circuit Court of Appeals.

POINT Il

In Petitioners’ case, the Fourth Circuit Court of Appeals abus-

ed the limited legitimate purposes of the en banc rehearing power

to substitute the decision of a tenuous majority for that of the

panel judgment, for reasons unrelated to the effective ad-

ministration of the law or policy of this circuit.

e other statutory provision affecting exercise of the en banc

power by the circuit court is Federal Rule of Appellate Procedure

35. Subsection (a) states:

When Hearing or Rehearing en Banc Will be Ordered.

A majority of the circuit judges who are in regular ac-

tive service may order that an appeal or other proceedings

be heard or reheard by the court of appeals en banc. Such

a hearing or rehearing is not favored and ordinarily will

not be ordered except (1) when consideration by the full

court is necessary to secure or maintain uniformity of

its decisions, or (2) when the proceeding involves a ques-

tion of exceptional importance.

The rule reiterates the majority requirement of §46(c) and sets

out a criteria for identification of those special cases which war-

rant utilization of the en banc procedure. Because it compels the

time and attention of every circuit judge, the en banc rehearing pro-

cess is ‘not favored,’’'® a pragmatic restriction long recognized

by this Court: ‘‘En banc courts are the exception, not the rule. They

are convened only when extraordinary circumstances exist that call

for authoritative consideration and decision by those charged with

the administration and development of the law of the Circuit."’

American-Foreign S.S. Corp., supra, 363 U.S. at 689. The policy

underlying the en banc rehearing statute is ‘‘that the active circuit

judges shall determine the major doctrinal trends of the future for

their court.’ /d., at 690. There is now general agreement among

the circuits that the ‘extraordinary’ cases meriting en banc treat-

ment are those which involve legal issues likely to impact upon many

other cases -- i.e., those of real significance to the legal process

as well as to the particular litigants involved. Church of Scientology

of California v. Foley, 640 F.2d 1335, 1341 (D.C. Cir. 1981) en

banc (Robinson, J., dissenting). In short, the terms of the procedural

rule itself, as well as the policy considerations affecting invocation

of the en banc power make clear that it is not intended for monitor-

ing panel decision-making or reconsideration of cases merely to cor-

rect what several circuit judges may feel is either an unjust or ques-

tionable panel decision.

With these considerations in mind, Petitioners contend that the

en banc judgment rendered below represents a capricious misuse

of the power, whereby the uninformed will of a narrow five-four

'°The degree to which en banc rehearings are disfavored is illustrated by statistics

for fiscal 1980. In that year, 23,200 appeals were filed in the Federal Courts of

Appeals; 10,598 were orally heard or submitted on briefs. Of these, only 65 cases

were heard en banc. 1980 Annual Report of the Director, Administrative Office

of the United States Courts at 43, Table 1; 49, Table 7, cited in Church of Scien-

tology of California v. Foley, 640 F.2d 1335, 1341 n. 48 (D.C. Cir. 1979), en

banc (Robinson, J., dissenting).

majority has imposed itself to overturn the panel decision for reasons

most obviously related to the majority's perception of how the ap-

peal should be decided. Nothing contained in the opinion of the en

banc court suggests that this decision will affect the administration

and development of the law of the Fourth Circuit, or that the holding

will have any ongoing pertinence to other cases which may hereafter

arise in the circuit. Circuit Judge Phillips, who authored the pancl

opinion and dissented from the en banc decision, accurately

characterized the nature and effect of the action taken by his fellow

judges:

It obviously resolves no intra-circuit conflict of decision.

It neither announces, abandons, nor clarifies any legal

principle that might bear upon general ‘‘doctrinal trends”’

in circuit law. It lays down no precedent likely to pro-

vide helpful guidance either to the district courts in ex-

ercising discretion or to this Court in reviewing exer-

cises of discretion in future cases of general comparabili-

ty. It deals with no controversy of such general public

importance, as opposed to public curiosity, that full-court

imprimatur is desirable simply to encourage greater

public confidence in the end result. It simply substitutes

the judgment of a one-vote majority of the nine-member

en banc court for that of a one-vote majority of a three-

member panel on purely judgmental questions of trial

court discretion not likely ever to recur in even general-

lv comparable form. Raw power obviously exists in the

larger majority to do this; the real question is the pro-

priety of the power's exercise in this or other cases of

the general type.

Appendix F, at pp. 28-29f.

A review of the opinion of the en banc majority confirms this

assessment and points up the tenuous, unfortunate quality of judicial

prerogative which is being indulged. Five circuit judges agreed that

there was ‘‘substantial error’’ (Appendix F at p. 10f) in the denial

by the district court of the pre-trial motion to sever Petitioners’ case

from the Aetna case. In his dissent from the panel judgment, Cir-

cuit Judge Murnaghan had agreed that consolidation was

‘theoretically proper’’ (Appendix D, at p. 30d) but apparently

changed his mind on this issue by the time the en banc rehearing

was held. The discretionary decision by the district court not to sever

the related cases is the on/y matter upon which the en banc majori-

ty reached a five-judge concensus. On the critical issue linking the

allegedly improper jury arguments by Petitioners’ counsel to the

size of the compensatory verdicts, Circuit Judge Widener (in the

five-judge maiority on the consolidation question) ‘‘would affirm

the judgement of the district court because of lack of contem-

poraneous objections and motions for mistrial.’’ (Appendix F at

pp. 13-14f)

There was at best then a *‘makeshift majority’’ in support of rever-

sing the panel judgment because of a different view of the proprie-

ty of the district court’s decision not to sever the trials of Petitioners’

claims from the Aetna case. On the face of the en banc majority

opinion, that is the only articulated basis for the reversal and re-

mand directed by the circuit court. Any pretense that the consolida-

tion issue in this appeal is either of exceptional legal importance

or likely to affect future doctrinal trends within the Fourth Circuit

is dispelled by the er hanc majority's own treatment of the question:

There is no need for us to aiinounce a rule of universal

applicability, imposing as an absolute necessity the

separate trial of every case which is a candidate for con-

solidation if consolidation results in revelation to the jury

of insurance coverage for a defendant. Nevertheless,

looking at the facts and circumstances of the particular

case, we are Satisfied that knowledge of Eastern’s in-

surance coverage, and awareness of the approximate

quantum of recovery for virtually every other crash vic-

tim, implanted in the minds of the jury resulted in pre-

judice, almost surely prejudice from the outset and cer-

tainly prejudice after the trial had wended its way to

conclusion.

Appendix F at p. lif

(footnote omitted).

This heavy-handed, simplistic rationalization for achieving what five

circuit judges apparently felt was the ‘‘right’’ result in this particular

appeal underscores Petitioners’ contention that the en banc power

was abused in this instance by the circuit court.

The legal issue presented by Eastern’s appeal was the possible

abuse of discretion by the district court in its denial of the motions

for new trials as to the amount of compensatory damages. The prin-

cipal contention of the appeal was that improper argument by Peti-

tioners’ counsel had influenced the jury to award excessive com-

pensatory damages. After conducting a painstaking, principled

analysis of over 2,000 pages of the record on appeal, the panel ma-

jority concluded not only was there no showing of abuse of discre-

tion by the district court, but that the claim concerning the size of

the verdicts and the impact of the questioned jury arguments upon

those verdicts was simply not borne out by the events of the trial.

Recognizing the inherently limited scope of appellate review of

trial court discretionary rulings, the panel majority focused its

analysis on the totality of circumstances surrounding the statements

made by Petitioners’ counsel as the only legitimate method for

deciding whether there was a reasonable probability that the ver-

dicts were the result of some improper influence. See, City of

Cleveland v. Peter Kiewit Sons’ Co., 624 F. 2d 749, 756 (6th Cir.

1980); Appendix D at p. 13-14d.

The tactors which the panel majority found persuasive in its deter-

mination that prejudicial influence was highly unlikely included,

inter alia:

{1} the fact that Eastern had admitted liability for com-

pensatory damages and the compelling nature of

Pet tioners’ injuries made substantial verdicts a

certainty;

{2} strong, credible evidence was offered in support

of the imposition of punitive damages (Appendix

D at p. 3d) yet no award was made on that issue;

[3] the district court gave frequent, general cautionary

instructions to the jury throughout the course of the

trial and specifically addressed itself to the only in-

stance of jury argument to which contemporaneous

objection was made by Eastern’s trial counsel; and

[4] perhaps most importantly, that no contemporaneous

objections or motions for mistrial were made by

defense counsel to the very arguments which

Eastern contended on appeal were the source of the

excessive verdicts.

See, Appendix D at pp. 14-16d;

Appendix F at pp. 34-35f.

The cumulative effect of these trial circumstances and the real

issues facing the jury totally undermine the contention that the

damage awards reflected an improper enhancement resulting from

statements by Petitioners’ counsel. Of equal importance to the panel

majority's conclusion in this respect was the probing analysis of

the trial record which it performed -- an essential element of any

serious search for a causal connection between alleged prejudicial

trial conduct and the resulting verdicts.

The panel dissent by Circuit Judge Murnaghan which was adopted

as the rationale for the en banc decision never attempted to trace

the potential harm of the questioned jury arguments into the ver-

dicts themselves. That dissent, and now the en banc majority, con-

tented itself with a scathing condemnation of the conduct of Peti-

tioners’ counsel as the basis for the conclusion that the verdicts

should be reversed, without ever coming to grips with the more

critical inquiry whether that conduct in fact prejudiced Eastern’s

right to a fair trial. The dissent by Circuit Judge Phillips from the

en banc majority decision describes it well:

The en banc decision is -- so far as can be discerned from

what is said in the two opinions -- rested entirely upon

a blunt perception that the misconduct of counsel here

is so bad that review need not go beyond a simple recogni-

tion of its particular degree of impropriety -- with re-

mand for new trial dictated as a matter of course because

of the degree perceived and the need to deter repetitions.

No attempt is made to assess whether, under a careful

record review, it must further be assumed that actual pre-

judice to Eastern probably resulted from the misconduct.

Appendix F, p. 32f;

(emphasis in original).

There was no comparable review of the record on appeal under-

taken by either the panel dissent or the en banc majority. The

language and brevity of the dissent itself demonstrate clearly that

the perceived egregious conduct by Petitioners’ counsel was thought

to be sufficient justification to warrant reversal, without undertak-

ing any detailed review of the actual probability of prejudice. The

premise for the observation by the dissent that the district court had

“‘lost control of the situation,’’ (see Appendix D at p. 37d, n. 3;

Murnaghan, J., dissenting) rests upon its interpretation of the words

of a pretrial memorandum (see p. 5, supra.) which the dissent

considered an onci invitation to Petitioners’ counsel to perpetrate

abuses at trial with the certain knowledge that the district court had

precluded itself from declaring a mistrial, regardless of their tran-

sgressions. That perception not only defies logic and a commonsense

reading of the pretrial memorandum, but ignores as well the

documented proof that the district court scrupulously supervised

the conduct of a/l/ counsel during the trial and effectively shielded

the jury from the extremes of advocacy which the trial of such im-

portant and emotional issues inevitably produces. (Appendix D, p.

16d, n. 11 and p. 17d, n. 13; See also Appendix F at p. 32f, n. 10).

The particular context of the tragic crash which gave rise to Peti-

tioners’ claims and the events of the trial of those claims in November

1979, create a unique backdrop for this appeal -- one which is unlike-

ly ever to be duplicated. The language of the decision by the en

banc court makes it clear that consideration of the issues in this

appeal by the full court was not necessary to secure or maintain

uniformity of decisions within the Fourth Circuit. There is nothing

contained in this highly fact-specific, unexceptional diversity case

to warrant the investment of tinie and resources compelled by con-

vening of the en banc circuit court, The only possible explanation

for the decision to rehear en banc and the ensuing reversal of the

panel judgment was a presumably honest, albeit unarticulated, dif-

ference of perspective by five judges as to what should be the out-

come of the appeal. Without undertaking any responsible review

of the unique facts of this case, the verdicts were overturned by

the thinnest of a majority of circuit judges.

Petitioners urge upon this honorable Court the conclusion that

the action taken by the Fourth Circuit Court of Appeals in revers-

ing the panel judgment is not only substantively incorrect, but

represents as well a misuse of the important en banc rehearing power

which this Court should not brook.

Conclusion

By its decision to proceed with rehearing en banc in this case,

the Fourth Circuit Court of Appeals has placed itself squarely in

conflict with the interpretation of the majority requirement of 28

U.S.C. §46(c) which is applied in the Second, Third, Sixth, Seventh

and D.C. Circuits. Two other circuits follow policies in connec-

tion with en banc rehearings which lend further uncertainty as to

the correct interpretation of this federal statute. This unsettled state

of affairs among the circuit courts and the importance of the en banc

rehearing process to the adjudication of controversies in the federal

system warrant exercise of the supervisory power of this Court and

granting of the petition of certiorari which Petitioners seek.

As a corollary to the resolution of the question concerning §46(c),

this Court should carefully scrutinize the particular exercise of the

en banc power in this appeal. The proceedings below offer an ex-

cellent opportunity for this Court to provide guidance to the circuit

courts concerning the limited proper use of the en banc authority

and to sanction the misuse of that power committed here by the

Fourth Circuit.

Petitioners therefore respectfully request that this Court grant their

petition for a writ of certiorari,

Respectfully submitted.

Gary S. Hemric

William K. Diehl, Jr.

JAMES, McELROY & DIEHL, P.A.

700 Home Federal Building

139 South Tryon Street

Charlotte, N.C, 28202

Telephone: 704/372-9870

Counsel for Petitioners

DATED: September 26, 1983

APPENDIX A

Judgment of the District Court

United States District Court

W.D. North Carolina

Charlotte Division

Jan, 22, 1980

RICHARD ARNOLD, IV.,

Plaintiff,

EASTERN AIR LINES, INC.,

Defendant and

Third-Party Plaintiff,

¥.

UNITED STATES OF AMERICA,

Third-Party Defendant.

No. C-C-76-108

JUDGMENT

McMillan, District Judge.

THIS CAUSE was tried to a jury at the November 5-29, 1979,

term of civil jury court for the Western District of North Carolina,

Charlotte Division, The defendant admitted liability for compen-

satory damages and the following issues were submitted to the jury

and answered by the jury in the case of the plaintiff Arnold as

follows:

1. Was the plaintiff Richard Arnold, IV., injured and

damaged by negligence of the defendant Eastern Air Lines,

Inc.?

Answer: Yes. [As instructed by the court and for purposes

of a complete verdict only.]

2. What amount, if any, is the plaintiff Richard Arnold,

IV., entitled to recover of the defendant Eastern as compen-

satory damages?

Answer: $3,027,500.00.

7. In your discretion, what amount of punitive damages,

if any, should be awarded?

Answer: No.

8. How should the above amount of punitive damages be

divided among the plaintiffs?

To the plaintiff Arnold: No.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND

DECREED:

1. That plaintiff Richard Arnold, IV., have and recover of defen-

dant Eastern Air Lines, Inc., the sum of Three Million Twenty-

Seven Thousand Five Hundred and No/100 Dollars ($3,027 ,500.00),

2. That this judgment for the above amount is entered nunc pro

tunc as of November 29, 1979, the date of the verdict.

3. That plaintiff recover interest on this principal sum at the rate

of six percent (6%) per annum computed from and after November

29, 1979.

4. That the court has considered (a) the motion by defendan.

Eastern for a partial new trial on the issue of actual damages and

(b) the motion of the plaintiff for a conditional new trial on the issue

of punitive damages. The court, in its discretion and based upon

all the evidence and the circumstances surrounding this trial known

to the court, and also for reasons briefly, though not by any means

completely, summarized in the accompanying memorandum of deci-

sion, denies Eastern’s motion for a partial new trial on the issue

of compensatory damages only.

As to plaintiff's motion for a new trial on punitive damages, the

court orders that if as a result of an appeal there should be a new

trial on the question of compensatory damages, then, but only in

that event, there shall also be a new trial on the issue of punitive

damages. In other words, this is a conditional order granting a new

trial on punitive damages nunc pro tunc if a new trial on actual

damages is to be had.

5. The usual and customary costs will be assessed against the

defendant on those items attributable to proof of actual damages,

and against the plaintiff on those items attributable to proof of

punitive damages. However, computation and assessment of these

costs can await the outcome of the appeal, if any, from this judg-

ment; if a new trial is ordered, this order respecting costs will, of

course, be modified in accordance with the ultimate outcome of the

various issues. ry

)

ie)

APPENDIX B

Judgment of the District Court

United States District Court

W.D. North Carolina

Charlotte Division

Jan, 22, 1980

FRANCIS C. MIHALEK,

Plainuff,

EASTERN AIR LINES, INC.,

Defendant and

Third-Party Plaintiff,

vy.

JNITED STATES OF AMERICA,

Third-Party Defendant.

C-C-76-249

JUDGMENT

McMillan District Judge.

THIS CAUSE was tried to a jury at the November 5-29, 1979,

term of civil jury court for the Western District of North Carolina,

Charlotte Division, The defendant admitted liability for compen-

satory damages and the following issues were submitted to the jury

and answered by the jury in the case of the plaintiff Mihalek as

follows:

3. Was the plaintiff Francis C. Mihalek injured and damag-

ed by negligence of the defendant Eastern Air Lines, Inc.?

Answer: Yes. [As instructed by the court and for purposes

of a complete verdict only.]}

4. What amount, if any, is the plaintiff Francis C. Mihalek

entitled to recover of the defendant Eastern as compensatory

damages?

Answer: $1,137,500.00.

7. In your discretion, what amount of punitive damages,

if any, should be awarded?

Answer: No.

8. How should the above amount of punitive damages be

divided among the plaintiffs?

To the plaintiff Mihalek: No.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND

DECREED:

1. That plaintiff Francis C. Mihalek have and recover of defen-

dant Eastern Air Lines, Inc., the sum of One Million One Hun-

dred Thirty-Seven Thousand Five Hundred and No/100 Dollars

($1.137,590.00).

2. That this judgment for the above amount is entered nunc pro

tunc as of November 29, 1979, the date of the verdict.

3. That plaintiff recover interest on this principal sum at the rate

of six percent (6%) per annum computed from and after November

29, 1979.

4. That the court has considered (a) the motion by defendant

Eastern for a partial new trial on the issue of actual damages and

(b) the motion of the plaintiff for a conditional new trial on the issue

of punitive damages. The court, in its discretion and based upon

all the evidence and the circumstances surrounding this trial known

to the court, and also for reasons briefly, through not by any means

completely, summarized in the accompanying memorandum of deci-

sion, denies Eastern’s motion for a partial new trial on the issue

of compensatory damages only.

As to plaintiff's motion for a new trial on punitive damages, the

court orders that if as a result of an appeal there should be a new

trial on the question of compensatory damages, then, but only in

that event, there shall also be a new trial on the issue of punitive

damages. In other words, this is a conditional order granting a new

trial on punitive damages nunc pro tunc if a new trial on actual

damages is to be had.

5. The usual and customary costs will be assessed against the

defendant on those items attributable to proof of actual damages,

and against the plaintiff on those items attributable to proof of

punitive damages. However, computation and assessment of these

costs can await the outcome of the appeal, if any, from this judg-

ment; if a new trial is ordered, this order respecting costs will, of

course, be modified in accordance with the ultimate outcome of the

Various issues.

APPENDIX C

Opinion of District Court

United States District Court

W.D. North Carolina

Charlotte Division

Jan. 22, 1980

C-C-76-108

RICHARD ARNOLD, IV.,

Plainuff,

Vv,

EASTERN AIR LINES, INC.,

Defendant.

C-C-76-249

FRANCIS C. MIHALEK,

Plaintiff,

Vv.

EASTERN AIR LINES, INC.,

Defendant.

C-C-77-006

HELEN RAE WESTON, as Executrix

of the Estate of Lewis M. Weston, deceased.

Plaintiff,

Vv.

EASTERN AIR LINES, INC.,

Defendant.

MEMORANDUM OF DECISION

McMillan, District Judge.

These cases are before the court on various post-verdict motions:

(1) defendant's motion to set aside the verdict and for a new trial

on compensatory damages only in each of the three cases; (2) plaintiff

Arnold's conditional motion for a new trial on the question of

punitive damages; (3) plaintiffs’ and defendant's motions regarding

the taxing of costs; (4) plaintiff Mihalek’s and plaintiff Weston’s

motions for pre-judgment interest; and (5) plaintiffs’ motions for

an order requiring a cash appeal bond.

MOTIONS TO SET ASIDE THE VERDICT AND FOR NEW

TRIAL

Eastern’s motion to set aside the verdict in each case rests (1)

on the alleged excessiveness of the damage award and (2) on cer-

tain prejudicial errors allegedly committed by the court during the

trial.

A. Assertions of Error. —With one exception to be discussed

below, the court is of the opinion that defendant's various asser-

tions of error are without merit.

1. Consolidation of the passenger suits with the Aetna suit against

the United States and Eastern’s third-party complaint.

The court again concludes that there was no error and no pre-

judice to Eastern Air Lines in consolidating these cases for trial,

for the reasons stated in the court's order of November 1, 1979,

denying separate trials.

2. Admission into evidence of photographs and eyewitness

testimony about the crash scene.

The court took great care to exclude and did exclude photographs

and proffered testimony on the crash scene that was not made com-

petent by testimony as to what the plaintiffs (in contrast with other

witnesses) saw and experienced. The photographs admitted into

evidence were in no way inflammatory and prejudicial.

3. Newspaper coverage.

The jury was adequately instructed several times in this regard.

The court did not tell the jury that it was proper for them to read

or to consider press accounts of the case. There is no indication

that press accounts of the trial influenced the verdicts. Eastern’s

challenge to the instruction is somewhat ironic; the first act by any

lawyer which put possibly prejudicial information in the minds of

the jury through the press was by one of Eastern’s counsel who

‘*leaked"’ to a reporter on the morning the trial began the informa-

‘on that the United States had made a settlement with the two flight

attendants, whose claim was based upon alleged negligence of the

air traffic controllers.

4. Evidence of subsequent accidents.

This evidence was properly admitted in the trial of the punitive

damage question. Since defendant has subsequently argued in its

memorandum filed December 14, 1980, that the evidence on the

punitive damage question cannot be considered to have influenced

the amount of the compensatory award, the court is unable to con-

ceive in any event how defendant can simultaneously maintain that

it was prejudiced by this evidence.

5. Improper comments by counsel.

Comments by counsel where improper were cured by instruc-

tions of the court.

All the above errors were asserted as grounds for new trial in

all three cases.

6. Instructions regarding pain and suffering in the Weston case.

Defendant asserts that the court erred in instructing the jury on

the issue of decedent's pain and suffering as an element of

recoverable damages in the Weston case. The court is now per-

suaded that technical error was committed in this one regard. There

was apparently no evidence from which the jury could infer that

decedent was conscious for even an instant after impact. There

should therefore be a new trial in the Weston case uniess plaintiff

agrees to a remittitur in the amount of $50,000, which amount the

court believes is reasonable and adequate to offset the possibly pre-

judicial impact of the court’s erroneous instruction.

B. Excessiveness of the Award.—There remains the question

whether the damage awards shou!d be set aside in each case as clearly

excessive, shocking to the conscience or produced by passion and

prejudice.

The damage awards in each case are for large sums of money.

The court is of the opinion, however, that there is nothing ‘‘ex-

cessive’’ or *‘shocking’* in the awards such as should move a court

to set aside the considered verdict of the jury. This opinion is bas-

ed, in the first place, on the evidence of damages adduced at trial.

Only the jury, who actually heard and saw all the lengthy and graphic

evidence of damages, can fully appreciate its impact. I will not at-

tempt to re-create nor even outline that impact, and will refer to

it only as follows:

In the Weston case, plaintiff was awarded in damages, for the

wrongful death of her husband, $847,000 under a North Carolina

Statute which provides:

(b) Damages recoverable for death by wrongful act include:

(1) Expenses for care, treatment and hospitalization inci-

dent to the injury resulting in death;

(2) Compensation for pain and suffering of the decedent;

(3) The reasonable funeral expenses of the decedent;

(4) ihe present monetary value of the decedent to the per-

sons entitled to receive the damages recovered, including

but not limited to compensation for the loss of the

reasonably expected:

~—

a. Net income of the decedent,

b. Services, protection, care and assistance of the

decedent, whether voluntary or obligatory, to the

persons entitled to the damages recovered,

c. Society, companionship, comfort, guidance,

kindly offices and advice of the decedent to the

persons entitled to the damages recovered;

(5) Such punitive damages as the decedent could have

recovered had he survived, and pun'tive damages for

wrongfully causing the death of the decedent through

maliciousness, wilful or wanton injury, or gross

negligence;

(6) Nominal damages when the jury so finds.

N.C. Gen. Stat. §20A-18-2(b) (emphasis added).

In the Mihalek case, the jury was entitled to conclude from the

evidence that plaintiff Mihalek, as a result of the accident, has suf-

fered a lifetime pyschic [sic] disability, and that as a result of this

disability, a once confident, ambitious, and highly competent

business executive has been reduced to passivity, inactivity and

despair. The jury evidently accepted plaintiff's theory and evidence

of psychic injury; starting from that premise, there is nothing ex-

cessive or shocking in the award of $1.1 million that, in addition

to other demonstrated elements of damage, compensates Mr.

Mihalek for the lifetime loss of what he was as a person before the

accident occurred.

Finally, Mr. Arnold's account of the pain and suffering resulting

from the burns sustained in the crash of Eastern Flight 212 and the

ensuing treatment, though dramatic, was credible and without

parallel in the experience of the trial judge, which covers twelve

years on the bench and twenty-three years as a trial lawyer trying

numerous injury cases. This pain and suffering, in combination with

the lifetime disfigurement and disability proved at trial, and other

proved damages, renders that $3 million award neither excessive

or shocking.

In the second place, it is a jury verdict we are considering. The

jury, not the judge, is the agency under our constitutional system

which ‘‘makes the market"’ in cases like this; the jury is not bound

by the appraisals made for purposes of compromise settlement, nor

by the ‘‘average’’ of about a third of a million dollars per person,

which, under the evidence, had been paid four to six years ago in

settlement of some seventy-odd otiier claims arising out of this

catastrophe. The size of the awards is not excessive when viewed

in the light of recent personal injury verdicts in jurisdictions in-

cluding North Carolina of which the court is aware; of the current

rate of inflation, and of previous settlements of soine individual suits

for far more than $1 million as long as four years ago for wrongful

death claims arising out of the flight of Eastern 212.

There is also a motion by plaintiffs for a new trial on the issues

of punitive damages in the event the compensatory damage award

is set aside. This motion rests on three grounds: allegedly improper

appeals by defense counsel to sympathy and emotion; disregard by

the jury of the court’s instructions; and new evidence. The first and

second are without support in the record and are without merit. The

new evidence asserted as the third ground relates to the recent at-

tempted landing of Eastern Air Lines Flight 623 at Brockenborough

Airport on Sunday, November 25, 1979. The incident occurred dur-

ing the trial and before the present cases were sent to the jury but

did not come to public attention until after the jury returned with

its verdict. Press reports indicate that the crew of southbound Flight

623 mistook a small general aviation facility north of Charlotte for

the much larger Douglas Municipal Airport several miles to the

southwest, and was within some 600 feet of landing on its short,

thinly paved runway when warned off by Charlotte air traffic con-

trol. Plaintiffs contend that the circumstances surrounding the

Brockenborough incident led to show that cockpit discipline remains

a problem at Eastern despite defendant’s assertions to the contrary.

It is possible that evidence of this near-catastrophe would be com-

petent in a new trial; the court, however, is of the opinion that this

evidence, standing alone, is insufficient to warrant retrial of an issue

that already has been the subject of extensive proof and argument

and lengthy deliberation by a properly instructed jury. In any event,

it is unnecessary to decide plaintiffs’ motion since the court today

concludes that the damage verdicts should not be set aside.

The court is or the view, however, that if a new trial is ordered

on appeal, such new trial should be on all questions and not limited

simply to the amount of compensatory damages. The court arrives

at this conclusior without joy. Substantial court time has been twice

consumed in trial of the punitive damages question. While plain-

tiffs made a strong case for punitive damages, the jury decision not

to award punitive damages is supportable on the evidence. The court

believes, however, that if a new trial is ordered pursuant to appeal,

then it would be unjust to re-try the cases solely on the issue of

compensatory damages. This is based on the court's view that one

probable reason for the large verdicts is that the compensatory award

includes some element of disguised punitive damages or represents

a compromise in which one or more persons on the jury traded their

convictions on the punitive damage question for an increase in com-

pensatory damages. There is no evidence before the court on the

jury's discussions in this regard. The court's surmise is baseu on

the strength of the case for punitive damages and the length of time

the jury apparently devoted to deliberating the question of liability

for punitive damages. If anything improperly influenced the amount

of damages awarded, the court views the evidence of reckless, in-

attentive and wanton misconduct by the crew (and the amazing ap-

proval displayed by Eastern’. resident and its flight safety chiefs

for routine disregard by flight crews of the warning signals they

were getting from altimeters and terrain warning indicators and other

safety devices installed for their use) as being much more likely

causative factors than any of the various errors alleged by defen-

dant. Indeed, at hearing on the post-verdict motions, counsel for

defendant offered just such explanation of the size of the verdici.

Now that it has become apparent a compromise verdict would war-

rant and might even compel a new trial on all issues or none, defen-

dant has abandoned this view of the verdict. In its memorandum

filed January 14, 1980, defendam contends that ‘‘the character of

Eastern Air Lines’ conduct did not bear upon the amount of actual

damages due to Plaintiffs as compensation for injury’’ and that ‘‘there

is no substantial indication that the verdicts were the result of a com-

promise.’’ If there is a substantial probability that the verdict was

such a compromise, re-trial of the punitive damage issue along with

the compensatory damages would appear proper under controlling

decisions in this circuit and the weight of authority in other jurisdic-

tions. See Great Coastal Express, Inc. v. International Brotherhood

of Teamsters, 511 F. 2d 839, 846 (4th Cir. 1975), cert. denied,

425 U.S. 975 (1976); 6A Moore's Federal Practice §59.06, at 81-84.

COSTS

The court is of the opinion that costs should be apportioned bet-

ween the compensatory and punitive phases of the proceedings, with

Eastern recovering its costs in defending punitive liability and plain-

tiffs recovering their costs in prosecuting their claims for

compensation.

INTEREST

A. Pre-verdict Interest.

Counsel for plaintiffs have moved for an order assessing interest

against the defendant from the date of the injuries or, in the alter-

native, from the date of the first pleading filed by defendant admit-

ting liability for compensatory damages.

Plaintiffs should not receive pre-verdict interest. It is clear both

from the authority cited in support of the motion and from con-

trolling decisions in North Carolina that pre-judgment interest on

some determinable amount is recoverable, but only as an element

of damages. See, e.g., Yancey v. N.C. State Highway Commission,

221 N.C. 185 (1942). In order to recover, plaintiffs must plead their

right to pre-judgment interest and submit an issue thereon to the

jury. Had plaintiffs requested an appropriate instruction, the court

could have permitted the jury to award pre-judgment interest on

those elements of damage that were readily and precisely deter-

minable prior to trial. Plaintiffs did not do so. They cannot raise

the question for the first time now.

In addition, adding pre-judgment interest would be inequitable.

The chief factor delaying trial on the amount of compensatory

damages was the plaintiffs’ pursuit of their punitive damage claim.

In view of the high rate of inflation in recent years, it is unlikely

that a jury in 1976 or 1977 would have returned verdicts in the

amounts in fact awarded in 1979. Thus there is already an ‘‘interest’’

element in the awards, and to add on pre-judgment interest to these

amounts would, in a real sense, constitute a double recovery.

B. Post-verdict Interest.

In view of the large sums involved, plaintiffs should not be pre-

judiced by the delay in the entry of judgment necessitated by con-

sideration of the post-verdict motions.

Judgment will therefore be entered nunc pro tunc as of the date

of the verdicts and the legal rate of interest calculated from that

date pursuant to 28 U.S.C. §1961.

C. Supersedeas Bond,

Under Rule 62 of the Federal Rules of Civil Procedure, a

supersedeas bond is the normal requirement to stay execution pen-

ding appeal from a judgment for damages. The court will deal with

any motions or questions about that subject when proposed bonds

are presented for approval.

APPENDIX D

Panel Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

For The Fourth Circuit

Appeal from the United States District Court for the Western District

of North Carolina, at Charlotte. James B. McMillan, District Judge.

RICHARD ARNOLD, IV,

Appellee,

EASTERN AIR LINES, INC.,

Appellant,

Vv.

UNITED STATES OF AMERICA,

Appellee.

No. 80-1245

FRANCIS C. MIHALEK,

Appellee,

EASTERN AIR LINES, INC.,

Appellant,

UNITED STATES OF AMERICA,

Appellee.

No. 80-1246

HELEN RAE WESTON, as Executrix

of the Estate of Lewis M. Weston, deceased,

Appellee,

Vv.

EASTERN AIR LINES, INC.,

Appellant.

No. 80-1247

Argued June 2, 1981. Decided June 4, 1982

Before BRYAN, Senior Circuit Judge, PHILLIPS and MUR-

NAGHAN, Circuit Judges.

PHILLIPS, Circuit Judge:

These consolidated appeals grow out of the crash of Eastern

Airlines Flight No, 212 near Charlotte, North Carolina on September

11, 1974, which resulted in the deaths of 69 passengers and 2 crew

members and serious personal injuries to 9 passengers and 2 crew

members who survived. Four resulting lawsuits consolidated for

trial generate these appeals. In Nos, 80-1245, 80-1246, and 80-1247,

respectively, Eastern Airlines (Eastern) appeals the award of com-

pensatory damages aggregating over $4 miliion to surviving

passengers Arnold and Miihalek and the award of wrongful death

damages of $797,000 to the personal representative of deceased

passenger Weston, and in Nos, 80-1245 and 80-1246, Eastern ap-

peals the denial of its third party claims for contribution against

the United States of America in respect of the Arnold and Mihalek

personal injury actions. In No, 80-1334 The Aetna Casualty and

Surety Company and other insurers of Eastern (Aetna) appeal the

dismissal, following trial to the court and jury respectively, of their

action against the United States and four individual air traffic con-

trollers for contribution in respect of their out of court settlements

of claims by or on behalf of other crash victims and of a property

damage claim for destruction of the aircraft. We affirm the judg-

ment in all respects save the award of wrongful death damages in

the Weston action; as to that we find reversible error and remand

for a new trial,

Following the crash of Flight 212 the great bulk of the ensuing

claims by and on behalf of surviving and deceased crash victims

were settled out of court by Easterns insurers. A total of around

$22 million was paid in these settlements, and another $3,281,000

was paid in settlement of the aircraft owner's property damage claim.

Not ail the claims were settled however. In March and September,

1976, respectively, surviving passengers-plaintiffs Arnold and

Mihalek commenced diversity actions against Eastern in the United

States District Court for the Western District of North Carolina

seeking, on allegations of negligence, compensatory and punitive

damages for their personal injuries. In September 1976, plaintiff

Helen Weston as Executrix of the Estate of deceased passenger

Lewis M. Weston, commenced a diversity action in the United States

District Court for the District of South Carolina seeking, on allega-

tions of negligence, compensatory and punitive damages for the

wrongful death of her decedent. In the Arnold and Mihalek actions

(but not the Weston action) Eastern impleaded the United States

on allegations of the concurring negligence of certain government

employees on duty as air traffic controllers at the time of the crash,

and sought on this basis contribution from the government in respect

of Eastern’s potential liability. In its responsive pleadings to the

personal injury and wrongful death claims Eastern admitted liability

for compensatory damages! but denied liability for punitive damages.

In February 1977 Aetna and the other insurers of Eastern com-

menced an action in the United States District Court for the Western

District of North Carolina against the United States under the Federal

Tort Claims Act, 28 U.S.C. §§ 1346 et seq. , and against four federal

air traffic controllers under North Carolina common law, alleging

concurring negligence by these defendants and seeking on that basis

contribution? in respect of amounts paid by the insurers in making

the out of court settlements noted above.

After all four of these actions’ had been transferred to the Charlotte

Division of the Western District of North Carolina under the

guidelines for complex and multi-district litigation, the district court,

in early November 1977, sua sponte ordered them consolidated for

' The fault specifically admitted by Eastern as the basis for its liability was the

‘*failure of the pilots to be aware of the plane's altitude immediately prior to the

crash.’’ On trial the exact nature of this fault was amplified by specific evidence

- mainly that preserved by on-board and airport recorders - of pilot inattention

and carelessness which the trial judge characterized, with full support from the

record, variously as ‘‘a shocking lack of attentiveness,’’ ‘‘unattentiveness and

carelessness of a truly extraordinary nature,’ ‘not simply inadvertent but gross-

ly negligent.”

? The claim as originally pleaded included full indemnification as an alternative

on the basis of primary negligence of the air traffic cortrollers. This alternative

was abandoned before trial.

* Along with two other actions by airline stewardesses against the United States

that were settled before trial.

discovery and trial, subject to reconsideration as to the trial aspect

following the completion of discovery. Discovery then proceeded

in the consolidated actions until mid-October, 1979. Shortly after

completion of discovery Eastern and Aetna moved to sever the Aetna

action for trial in order to avoid prejudice to Eastern. After con-

sidering alternative proposals respecting the appropriate procedure,

the district court denied the motion for severance, and the con-

solidated actions proceeded to trial.

Following a three-week trial to court and jury,‘ the jury, after

seventeen hours of deliberation, returned verdicts awarding substan-

tial compensatory damages, but denying any punitive damages, on

the Arnold, Mihalek and Weston claims and finding the air traffic

controllers not liable on Aetna’s claim for contribution. Arnold was

awarded $3,027,500; Mihalek, $1,137,500; and Weston’s represen-

tative, $847,000. Following briefing and argument of various post-

trial motions by the parties, the district court declined to disturb

the jury verdicts in any save one particular. On the Weston wrongful

death verdict the court determined that it had erred in submitting

pain and suffering to the jury as a compensable item of damages

and, to correct this error, ordered a remittitur of $50,000, reduc-

ing the award to $797,000, which the plaintiff accepted. As so reduc-

ed, the court let this verdict stand. On Eastern’s third party claim

and Aetna’s separate claim against the United States for contribu-

tion that were tried to the court non-jury, the court made findings

of fact and conclusions of law against the claimants, finding the

United States not liable for contribution on either claim,

From the final judgment in favor of the personal injury and

wrongful death claimants on their claims and against Eastern and

Aetna on their respective cross-claim and claim for contribution,

Eastern and Aetna have appealed. They assign a number of errors,

some commanding more discussion than others, to which we now

turn, Further background facts and details of the proceedings will

be developed as needed in discussing particular assignments of error.

* The trial format established by the court before trial provided for trial of all

the claims to the jury whose verdicts however were only to be advisory with respect

to Eastern's third-party and Aetna's direct contribution claims against the United

States. As to those non-jury claims, judgment would be entered upon the court's

findings and conclusions. Though trial p.oceeded on this assumed basis down to

submission, the court declined at that point to submit the claims against the United

States to the jury for an advisory verdict. See Part ILI, infra.

Eastern’s three principal assignments of error - two of which are

paralleled in Actna’s assignments - all relate ultimately to the amount

of compensatory damages awarded in the personal injury and

wrongful death actions. Though subject to independent analysis,

the errors asserted are in the end so interrelated that we will discuss

them as a discrete cluster.‘

Both Eastern and Aetna complain first, in chronological terms,

of the refusal of the court to sever the originally consolidated ac-

tions into two separate trial units: one consisting of the main claims

against Eastern together with Eastern’s two related third party claims

for contribution against the United States; the other, of Aetna’s action

for contribution against the United States and the four individual

air traffic controllers. Eastern claims that consolidated trials (the

denial of severance) resulted in prejudicially inflated damage awards

against it; Aetna, that it resulted in the introduction into its case

of prejudicial irrelevances related to Eastern’s culpability; and that

indeed there were not between the two units sufficient common

issues to permit consolidation under Rule 42(a).

Eastern and Aetna then join in complaining of grossly improper

conduct by opposing counsel® in making comments and arguments

directly to, and in the presence of, the jury. These, hey claim, were

not adequatel:; corrected by the trial judge and, in consequence,

resuited in demonstrable prejudice: to Eastern in the form of pre-

judicially inflated damage awards; to Aetna, by unfairly prejudic-

ing the jury in respect of the bona fides of the insurers’ claims for

contribution,

Eastern additionally assigns as error the trial judge's refusal to

set aside the damage awards as being excessive and the result,

however excited, of passion and prejudice.

We take these in order and in combination,

* Though these assignments run to the Weston wrongful death judgment as well

as to the two personal injury judgments, we discuss them here only in relation

to the latter in view of our remand of the wrongful death action on other grounds.

See Part IV, infra.

* Coupled with contentions of counse! misconduct is one of misconduct by plain-

tiffs’ witness Crossfield, a former Eastern vice-president. We have considered

that contention and finding it without merit do not further discuss it here.

The proper starting point for assessing this cluster of assigned

errors is the disirict court's decision to try these four actions and

the third party claims incident to two of them as a single unit. This

set the stage for all now challenged that followed.

Assessed for its independent effect upon the judgments appealed

from, we find no reversible error in the decision to deny the mo-

tions to sever. The decision whether to sever or to consolidate whole

actions or sub-units for trial is necessarily committed to trial coun

discretion. We review only to determine whether the discretion was

abused, Bowie v. Sorrell, 209 F.2d 49, 51 (4th Cir. 1953); In re

Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1013

(Sth Cir. 1977), and if so, whether prejudice resulted. Here we find

no abuse.

When the motions to sever were made some twelve days before

trial, Eastern and Aetna contended that a consolidated trial would

necessarily prejudice both of them: Eastern, by the necessary revela-

tion to the jury of the fact and apparent scope of its insurance

coverage; Aetna, by allowing evidence of Eastern’s allegedly gross

culpability to influence the jury in deciding whether any other par-

ty should, in view of such gross culpability, share Eastern’s (hence

Aetna’s) burden of liability. To avoid the predicted prejudice they

suggested two alternative procedures. First, as a quid pro quo for

severance of the Aetna action, Eastern would abandon its third party

claims for contribution against the United States in the two passenger

actions thereby foregoing in these actions at least any right of its

insurers to contribution in respect of these two litigated claims. Alter-

natively, in a consolidated trial of all the actions, specific steps could

be taken to screen from the jury any knowledge that Eastern had

liability insurance coverage or that any settlements of other claims

by its insurers had occurred. Counsel for Aetna and Eastern would

be introduced as co-counsel for Eastern, no mention of liability in-

surance would be allowed, and the jury would be informed only

of the interests involved in the passenger claims against Eastern and

in Eastern’s related third party claims for contribution.

appellants were obvious ones which in the exercise of a sound

judicial discretion the district court was obliged to weigh. See

Molever v. Levenson, 539 F.2d 996 (4th Cir. 1976). Failure carefully

to consider them and the alternative procedures advanced by ap-

pellants as a means of avoiding them may well have constituted

an abuse of discretion. But the record shows that they were carefully

weighed, both in absolute terms and in relation to countervailing

considerations also necessary to sound decision. The critical ques-

tion for the district court in the final analysis was whether the specific

risks Of prejudice and possible confusion were overborne by the

risk of inconsistent adjudications of common factual and legal issues,

the burden on parties, witnesses and available judicial resources

posed by multiple lawsuits, the length of time required to conclude

multiple suits as against a single one, and the relative expense to

all concerned of the single-trial, multiple-trial alternatives. See Fed.

R. Civ. P. 42; see generally 9 C. Wright & A. Miller, Federal

Practice & Procedure: Civil § 2383 (1971).

In this case it could not seriously be contended that the purely

logistical factors - time, expense, travel burdens, etc. - did not

militate in favor of a consolidated trial. Eastern and Aetna have

made no such claim. They focus instead primarily on the specific

risks of prejudice posed to Eastern by the disclosure of its insurance

coverage and to Aetna by evidence of Eastern’s possibly gross

culpability, and on the absence of any risk of inconsistent adjudica-

tions because of the asserted absence of any substantial common

issues between the Aetna contribution action on the one hand and

the passenger actions with their related third party contribution claims

on the other.

Without here exploring the parties’ opposing contentions on this

point in the same detail] that they have been advanced in both courts,

it suffices to say that the district court did carefully assess them

in detail in the process of making its determination not to sever the

actions. We are satisfied that the discretion exercised was in con-

sequence a sound one.

Gauging the possible prejudice to Eastern flowing from the

disclosure of insurance coverage, the district court made a pragmatic

assessment, one frequently made by federal courts, see, e.g., Tallant

Transfer Co. v. Bingham. 216 F.2d 245, 247 (4th Cir. 1954), that

under the specific circumstances of this case, it would simply be

unrealistic to assume either that the jury did not know that insurance

coverage existed or that, if it were known to exist, it would likely

inflate any damage award made against a corporate defendent such

as Eastern. Since liability for compensatory damages was not in

issue this was essentially the limit of risk. Cf. Posttape Associates

v. Eastman Kodak Co., 537 F.2d 751, 758 (3d Cir. 1976) (risk

of imposing liability because of insurance coverage).

Assessing the possible prejudice to Aetna in its effort to obtain

contribution from the government that would be created by revela-

tion of Eastern’s gross culpability and the details of the injuries

suffered by the crash victims, the court recognized the risk and ex-

plicitly relied upon its ability to safeguard Aetna’s interest by ap-

propriate cautionary instructions. We agree that this is the sort of

risk that a trial court may properly consider to be controllable by

this means, and we are satisfied that the judgment that here it might

be controlled was, in the event, borne out.’

Addressing the contention that there were no sufficient common

issues between Aetna’s contribution action and the main and third

party contribution claims to warrant consolidation under Rule 42,

the court correctly rejected it. Properly identified as substantial com-

mon issues were those of proximate causation necessarily involv-

ed in the passenger claims that Eastern’s negligence proximately

caused the crash, and Eastern’s and Aetna’s claims that the air traffic

controllers’ negligence concurred in causing it.* See, e.g., A/S Lud-

wig Mowinckles Rederi v. Tidewater Construction Corp. , 559 F.2d

928 (4th Cir. 1977).

We are satisfied that at the time the district court made its ruling

against severance, it did so reasonably and on the basis of a sound

assessment of the proper factors, hence well within the bounds of

the discretion committed to it.

* The court gave careful cautionary instructions to the jury in advance of the

presentation of evidence designed to clarify the relationships between the different

parties and the different claims and to emphasize the necessity that matters rele-

vant to one claim but not to another be kept in mind. The instruction was exemplary

in its clarity and accuracy

* In the event. the commonality of these issues was made plain by trial

developments. Indicative is the trial judge’s assessment of the evidence as it bore

upon the contribution claims directly against the United States which he decided

non-jury. The same evidence of course bore upon the asserted individual liability

of the air traffic controllers as alleged joint tortfeasors with Eastern, an issue sub-

mitted to and decided by the jury.

After recognizing that pilots and air traffic controllers both have a duty to exer-

cise due care to avoid accidents . . . “’ and that ‘‘[t}he fact that the pilots . . . were

guilty of negligence, proximately causing an accident, [does not] preclude a fin-

ding that negligence on the part of the controllers was also a proximate cause,"’

the judge concluded that on the evidence adduced air traffic controller negligence

had not been established as a concurring proximate cause. ‘‘An accident of this

sort could only occur through pilot inattentiveness and carelessness of a truly ex-

traordinary nature. Failure of [the] cont.ollers to observe the altitude of the

plane... , if a cause at all, was a remote rather than a proximate or provoking

Cause

Eastern’s major contention on appeal - another of those in which

Aetna joins - relates to conduct of opposing counsel in making im-

proper comments and arguments to the jury. So gross was this con-

duct, and so manifestly did it taint the jury verdicts, say the ap-

pellants, that only by setting the verdicts aside could the prejudice

be cured. The district court failed, they say, properly to curb and

contain its effects as it occurred and committed reversible error in

declining on their post-trial motions to correct it by that ultimate

means. Though the contention is a serious one that has been treated

accordingly, we conclude that here too the district court properly

acted within its discretion in declining on this ground to reject these

verdicts.

Of the many details of trial management necessarily committed

to broad trial court discretion, perhaps none is more due appellate

deference than conduct of non-judicial participants in the process

that is asserted unfairly to have prejudiced the jury. See Arkwright

Mutual Insurance Co. v. Philadelphia Electric Co. , 427 F.2d 1273,

1277 (3d Cir. 1970); see generally F. James and G. Hazard, Civil

Procedure § 7.18 (2d ed., 1977). This is a matter preeminently for

on-the-scene sensing by trial judges. At that vantage point demeanor

- here that of the jury - can be observed; the impact of efforts to

control and dissipate prejudicial effects can be assessed in light of

the interpersonal relationship that inevitably develops between trial .

judge and jury; and the actual effect of the conduct upon jurors -

an effect frequently at odds with or actually counter-productive to

that improperly intended by the offender - can be gauged first-hand.

For the very reason that the problem is essentially one of assessing

the immediate emotional and psychological effect of specific ac-

“Moreover, the court is not persuaded, as apparently neither was the jury, that

a warning from the tower, if it had been received, would have prevented the acci-

dent. The crew were not simply inadvertent but rather were grossly negligent.

They distracted themselves with extraneous matters; they did not look out the win-

dow to see what numerous others saw - that they were dangerously low; they fail-

ed to comply fully with procedures instituted to keep flight crews awake and con-

scious of their altitude while descending and landing; they ignored the visual

readings of five pairs of altimeters and beacons showing that they were too low

and descending too fast, and they also ignored a shrill whistle and red light which

called their low altitude emphatically to their attestion. I am unable to find that

an additional request from an air traffic controller that the pilot check his altitude

would have changed the outcome."’

10d

tions and words on particular people, the appellate vantage point

in retrospective review on a cold written record is especially sub-

ject to misperceptions of what actually transpired and, more subt-

ly, to miscalculations of likely effects. It is for this reason that trial

court discretion as to these matters is broad or - what comes to the

same thing - appellate review is especially deferential.

It is important also to emphasize that review here is ultimately

focused not upon the impropriety of counsel's conduct but upon

the propriety of the trial court's response to it.’ Of course if the

conduct challenged is not by applicable standards improper in the

first place, then there can be no abuse of judicial discretion in fail-

ing to take any, or particular, action to correct it. But the mere fact

that conduct is improper - even grossly improper - does not end

the inquiry. The question remains whether the judicial response -

or lack of response - to the legally improper conduct constituted

a prejudicial abuse of discretion. In consequence, a conclusion that

no prejudicial abuse of discretion has been shown is not necessari-

ly a condonation of the challenged conduct, though this is likely

always to be - as it is here - the dire assertion of appellants.

Orderly review will therefore look first to the question whether

and in what respects challenged conduct was in legal contempla-

tion improper, then turn, if need be, to the more difficult question

of the adequacy of the judicial response. We proceed on that basis.

There is no doubt that tested as and when it occurred by applicable

legal standards much of the conduct specifically challenged was im-

proper. Indeed the legal impropriety of some of it has been con-

ceded both below and here by offending counsel. Beyond its legal

impropriety, it was in substantial part inelegant, tasteless, offen-

sive, arguably violative of professional standards and, perhaps most

deserving of condemnation, irresponsibly threatening to any ver-

dicts that might in the end be obtained by offending counsel's clients.

Since in the end we find no abuse of discretion in the trial judge's

overall response to it, we might simply let stand this general assess-

ment and disapproval of counsel's conduct. Fair review - to both

sides - requires, however, that the general assessment be made more

* The specific response under review is of course the ultimate one: the directly

challenged refusal to set aside the veraict. Earlier, pre-verdict responses (or

nonresponses) are reviewed incidentally, as elements in the totality of the cir-

cumstances bearing upor the exercise of discretion in letting the verdict stand.

See F. James & G. Hazard, supra.

I1d

specific. Only so cam offending counsel be protected against im-

plication or speculation that things may have been even worse than

they were in fact, and appellants be provided an adequately reasoned

statement for our basis of decision. Additionally, the adequacy of

judicial response can only be fairly gauged in reference to specific

conduct.

Without attempting full embellishment of some of its more col-

orful elements, we first identify the specifically challenged conduct.

In identifying it in mass and without full contextual detail it is im-

portant to keep in mind that of course it did not all occur in such

possibly jolting proximity but in pieces over a period of days, and

that its real flavor could only be appreciated in full trial context.

Here we merely identify it to point up the various respects in which,

under applicable standards, it was or was not legally improper to

the point that judicial response of some kind was appropriate. For

sake of analysis, we group the principally challenged comments and

arguments in general categories.

In his opening statement to the jury one of the plaintiffs’ counsel

urged the jury to use the Golden Rule approach in fixing damages.

After advising the jury that they would hear evidence of psychic

injuries sustained by the plaintiffs and admonishing that ‘‘we do

not present this evidence to you by way of asking for your sym-

pathy,’’ he added, ‘‘[w]hat we do ask you to do is to listen to it

carefully, place yourself, if you can, in their shoes,’’

During jury selection government counsel, representing the

contribution-claim defendants, called attention to the fact that the

defendant air traffic controllers had children, one of whom had

recently died. In opening statement the same counsel suggested that

the only reason for the contribution claims was to mislead the jury

as to the real issues,

In closing arguments to the jury different ones of plaintiffs’ counsel

and government counsel from time to time:

—made an outright appeal for sympathy: ‘‘I’m asking, I'm beg-

ging for your sympathy for this man... They [plaintiffs] are beg-

ging for your sympathy"’;

—made disparaging remarks about defense witnesses: of one

witness, that Eastern ‘‘must have searched the countryside’’ for him;

and, of his testimony, that ‘‘for 40 bucks an hour, you can pro-

bably get almost anybody to say anything’’; of another witness,

Frank Borman, President of Eastern, that he was ‘‘pompous,’* ‘*god-

12d

like’* and that he, with others in Eastern’s management, were now

‘condoning the very thing that killed 72 people’’;

—made disparaging personal references to defense counsel: *‘the

gang over here’’; ‘‘the best Eastern’s money can buy’’; that one

was ‘‘ashamed"’ of his case and that plaintiffs’ counsel was *‘sorry

for [him] and that kind of attitude’’;

—made improper and intentionally inflammatory comments about

Eastern’s wealth, position and general culpability: ‘‘murderers’

row’*; the ‘‘great white knight corporation’’; a ‘‘little poor airline’

which ‘‘offered to buy [another line] for 342 million dollars’’; that

it had been engaged in ‘‘whacking them into the trees in

Houston . . . running off the runway in Buffalo . . . *’; had ‘*killed

112 human beings in New York’’; that ‘‘killing people and maim-

ing people is something they've gotten immune to as a part of do-

ing business"’;

—offered personal opinion as to the injustice and lack of merit

of Eastern’s defenses and Eastern’s and Aetna’s contribution claims:

‘‘outrageous"’; ‘‘insulting’’; attempt to ‘‘pass the buck’’; ‘‘Eastern’s

bad joke’’; ‘makes me sick’’; makes me ‘‘angry"’; “‘haven't real-

ly taken on that human responsibility to say we're sorry’’; ‘‘lack

of accountability’’; and offered contrasting personal opinions as to

the justice and merit of plaintiffs’ tactical decisions not to sue the

United States and the air traffice controllers: ‘‘the reason . . . is

a simple one, [t]hey aren't liable, and we have a duty . . . not to

sue people or the government when there isn't any liability’’;

—made improper references to settlements and settlement offers:

‘‘no offer to settle Mrs. Weston's case as long as I have been the

attorney for the case’’; defense counsel represents ‘‘the 19 insurance

companies that have been busy buying off the claims of the other

people, and he’s finally run up against three human beings . . . and

three lawyers that ain't going to be bought.”’

For purposes of this appeal we can accept that most of these

statements and arguments (and there were others of comparable

quality) were legally improper - in the sense that at the least and

as to most some kind of censure or curative instructions by the trial

judge - either sua sponte or on motion - would have been appropriate.

Some obviously fell more clearly beyond the bounds of permissi-

ble advocacy than others. Some arguably lay at least marginally

within legal bounds if not within those of the common civility that

13d

countless good lawyers have demonstrated is compatible with ef-

fective advocacy.

The Golden Rule appeal in opening statement and the blatant,

direct appeal for sympathy in closing argument were plainly im-

proper, and offending counsel concede this. The tasteless and ir-

relevant comments and allusions to and about opposing counsel were

improper under applicable professional standards and justified cen-

sure if for no other reason than to preserve some degree of respect

among the attending public for the professiun and the process. Less

clearly improper in the legal sense - though arguably so close to

the line that some cautionary instruction would not have intruded

unfairly into the prerogatives of advocacy - were the personal

characterizations of witnesses, the equally heavy-handed expres-

sions about the bona fides of the defendants’ tactical decisions in

defending the actions, and some of the more pejorative comments

about the degree of Eastern’s culpability in relation to other air

crashes. Of the same general stripe were the references to the defen-

dants’ refusal to make settlement offers to the plaintiffs, though in

fuller context, as will appear, the technical impropriety of those

comments may not have been that certain.

This leads then to the critical inquiry whether, on total balance,

the trial judge's response to these several incidents of clear or

arguable misconduct, leading finally to his refusal to set aside the

verdicts, constituted a prejudicial abuse of discretion. As to this

no more precise legal principles than those implicit in the general

concepts of *‘abuse’’ and ‘‘prejudice’’ exist. In consequence, there

is not much of specific precedential value to be found in other cases

- as the parties readily demonstrate on this appeal by their equal

ability to cite apparently conflicting decisions on the significance

in different contexts of various examples of counsel comments close-

ly comparable to those here in issue. See generally 11 C. Wright

& A. Miller, Federal Practice and Procedure: Civil, § 2809 &

nn.2-6 (1973). In the final analysis the question is simply one of

judgment to be exercised in review with great deference for the

superior vantage point of the trial judge and with a close eye to

the particular context of the trial under review rather than to any

general formulations of principle or to assessments of comparable

comments in other cases.

Helpful in focusing this general inquiry upon the specific ruling

challenged - the refusal to set aside the verdict because of counsel's

misconduct - is the Sixth Circuit's recent prescription for practical

14d

and principled review of such rulings in City of Cleveland v. Peter

Kiewit Sons’ Co. , 624 F.2d 749 (6th Cir. 1980), Fair review, said

that court, must take into account the ‘“‘totality of the circumstances,

inciuding the nature of the comments, their frequency, their possi-

ble relevancy to the real issues before the jury, the manner in which

the parties and the court treated the comments, the strength of the

case (e.g. whether it is a close case), and the verdict itself. ** /d.

at 756.

This is a helpful guide to proper and consistent review. It focuses

in a practical and systematic way upon whether, all things con-

sidered, the virulence of the comments, their intrinsic capacity un-

fairly to prejudice the jury on the real issues, the inadequacy of

any judicial efforts made to contain them or of any extrinsic fac-

tors of time or context to dissipate their force, make it a ‘‘reasonable

probability’’ id., that they improperly influenced the jury in reaching

its verdict. ‘*Improper influence’’ here must be understood to mean

effective subversion of the jury’s reason or of its commitment to

decide the issues on the evidence received and the law as given it

by the trial court. Only if such a reasonable probability is found

can an abuse of discretion in deciining to set aside that verdict be

found. Our review on that basis discloses no such abuse.

Perhaps the single most important of the relevant circumstances

here is the nature of the ‘‘real’’ issues before the jury. It is only

with respect to these that the probability of improper influence can

properly be gauged. They determine not only the content range of

proper comment and argument but, to a considerable extent, the

degree to which improper influence as opposed to the normal in-

fluence of partisan advocacy can be reckoned as probabilities in

explaining the verdicts.

The dominant issue in this trial was the degree of Eastern’s con-

ceded culpability. This bore directly upon that defendant's liability

for punitive damages. It bore less directly, but nevertheless

legitimately, upon the claim of Aetna to recover contribution from

the air traffic controllers as alleged joint tortfeasors, since it was

inextricably bound up in the primary issue of proximate causation

central to that claim. It also of course bore directly upon the amount

of punitive damages that might be recovered against Eastern. The

other issues in the case were the amounts of compensatory damages

due the three plaintiffs, liability for some amounts having been

conceded.

The permissible range and content of inevitably damaging evidence

15d

and argument opened by these issues was wide and of an inescapably

volatile nature. On the culpability issue, the substantive law not only

permitted but required evidence - hence partisan argument - going

to establish negligent conduct that a jury could find gross, wanton,

and consciously indifferent to others’ rights. See, e.g., Robinson

v. Duszynski, 36 N.C. App. 103, 243 S.E.2d 148 (1978). On the

compensatory damages issue, the nature of the injuries suffered by

the miraculously surviving, completely faultless personal injury

plaintiffs - hence of the evidence to establish its severity and lasting

effect - was necessarily calculated to excite in any jury some degree

of human sympathy, with or without overt appeals for it by counsel.

See Herman v. Hess Oil Virgin Islands Corp., 379 F. Supp. 1268,

1275 (D.V.I. 1974), aff'd, 524 F.2d 767 (3d Cir. 1975).

When such issues legitimately dominate the trial of a case, a trial

judge may well have a heightened obligation to police counsel against

excesses of zeal and deliberate impropriety. By the same token, the

obligation must be recognized as an exceedingly difficult one to

discharge in fairness to both sides. In such cases the substantive

law itself invites, indeed compels, inquiry into emotion-laden areas,

hence evidence and argument that necessarily track the substantive

law's content. In consequence, a trial judge attempting to contain

excessive emotional appeals by counsel must be concerned as well

to avoid unfair intrusions into the prerogatives of advocacy in

developing the issues legitimately in dispute. Punitive damage issues

- whether gross culpability exists, the amount required to deter and

punish - are of course prime examples. '°

Not only does the dominance of such issues justify cautious polic-

ing of emotional sallies during trial. More importantly for our pur-

poses, it counsels great caution by reviewing courts in finding im-

proper influence as the probable reason for a verdict disfavoring

a party against whom the influence of peculiarly damaging but whol-

ly proper evidence already inevitably runs so strongly.

ed Judge Spears to opine in Curtis Publishing Co. v. Butts, 351 F.2d 702, 714

(Sth Cir. 1965), aff'd, 388 U.S. 130 (1967), that ‘‘the very nature of the case

made it virtually impossible to discuss the evidence free of emotion or drama,"’

and Judge Wyzanski, writing more generally, to say of a political libel suit that

“*it is the modern substitute for ordeal by battle’’ isi which ‘‘the prudent and second-

thinking judge will stand severely aside, acting merely as a referee applying the

Marquis of Queensbury rules.’’ Wyzanski, A Trial Judge's Freedom and Respon-

sibility, 65 Harv. L. Rev. 1281, 1283-84 (1953).

16d

When the specifically challenged arguments here are related to

the real issues and to the verdicts returned upon them, perspective

is properly gained. Without condoning them, we can lay aside as

offensive irrelevancies - sufficiently dissipated in any event by

general cautionary instructions of the trial judge'' - the snide allu-

sions to and characterization of opposing counsel, of that counsel's

conduct of the litigation, and of opposing witnesses. The theoretical

possibility that either alone or in cumulative effect these may have

exerted some generally improper influence on the jury's delibera-

tions cannot be gainsaid. To find this a reasonable probability,

however, would denigrate a jury whose obvious care in deliberating

on this case over a period of some seventeen hours strongly belies

even the possibility that its reason and its will to obey its mandate

could have been subverted by such uninspired flights of invective.

The pejorative characterizations of Eastern’s culpability, wealth,

and callousness related essentially to the punitive damage issue.

While gross and unimaginative in tone and phrasing, the substance

of these arguments and comments lay at least arguably within the

range of fair comment on evidence properly introduced on this issue.

More importantly, their intended influence - whether proper or im-

'' E.g., in closing instructions: ‘* Your verdict is not to be based upon prejudice

or sympathy or any bias you may have for or against flyers or people who get

hurt. It's not to be based on emotion or on any outside information you may have

about the case. . . . You are not to decide any fact on speculation or guesswork

or conjecture. You're not to decide on any basis of a guess as to what you think

the Court would do if the Court were the jury . . . . You are the jury, and you're

to pay no more attention to what you think the Court would like for you to do

than you are to what lawyer I last cussed out or who I fussed at the longest. The

controversy is not between the lawyers and not between lawyer and lawyer, although

they are the ones who generate the evidence and the biggest commotion. The ques-

tion is one of law and justice among the litigants."

During trial: **(WJhen lawyers have been sitting for hours under tension they

sometimes explode, so do judges, and I again instruct you that you are not to decide

the case based on anything that takes place among the lawyers or between the

Court and lawyers . . . A little bit of temper flaring is natural, sometimes a little

distraction takes place, but it usually livens up the proceedings, so long as there

is not too much of it.”

Whether these cautionary references to the lawyers’ behavior and the court's

response to it actually had the intended effect is of course beyond any reviewing

court's power to gauge. What can be said is that in content it was directly on the

mark, and that in the very homeliness of its style it was calculated to put the mat-

ter in proper perspective as peripheral flares of temper, ‘‘commotion,"’ and *‘fuss-

ing’ irrelevant to the jury's fact-finding obligation.

17d

proper - was not realized on this issue since the jury found in

Eastern’s favor on it. That the arguments may indirectly and im-

properly have influenced the compensatory damage verdicts in a

possibility recognized by the district judge that is better assessed

in connection with our consideration of the size of the damage ver-

dicts as itself suggestive of improper influence.

This leaves the Golden Rule suggestion in opening statement and

the direct appeal for sympathy and the settlement comments in clos-

ing argument. We look first to the comment that no settlement had

been offered.

Aside from the possibility that this comment by counsel for plain-

tiffs may have been invited,'? we think the trial judge adequately

corrected and dissipated any improper influence stemming from it.

Immediately after the comment was made, the judge, on objection

of opposing counsel, severely admonished offending counsel in the

presence of the jury and gave a firm and clear cautionary

instruction, '3

The Golden Rule and sympathy appeals are the most obviously

improper arguments from a technical standpoint. Having no legal

relevance to any of the real issues, they were per se objectionable

in this case as they are in any. See, e.g., Leathers v. General Motors

Corp. 546 F.2d 1083, 1086 (4th Cir. 1976). Because here they had

the potential, and were undoubtedly intended, improperly to in-

fluence the jury on the compensatory damage issue, their possible

impact cn that issue deserved careful attention. The following cir-

'? In his opening statements to the jury, counsel for Aetna, over plaintiffs’ ob-

jection, told the jury that the insureis had ‘‘settled some 70-odd cases and paid

out $21,788,457.72.°' The trial judge speculated in determining how to handle

the later challenged comment by plaintiffs’ counsel that the first reference may

have been an improper attempt to establish in the jury's mind a comparable range

of recovery, and that the later comment was an ill-advised, tactically unsound ef-

fort to counter that. See Hall ». Texas & New Orleans Ry., 307 F.2d 875, 879

(Sth Cir. 1962) (retaliatory argument judged differently).

' To counsel: ‘*You may stay off of subjects which are forbidden for counsel

to argue to juries whether they are true or false. . . . You better obey. The next

time there won't be just a reprimand."’

To the jury: *‘[s}ettlement of a suit or a claim is not admission of anything unless

it contains . . . a formal admission of facts or formal admission of liability. The

fact that a party does or does not offer to settle a case is not something for you

to consider, has no bearing on the legal and factual questions which you may have

to decide."’

18d

cumstances suggest that, as the district court concluded, actual pre-

judice from them was in the event unlikely. In the first place, no

contemporaneous objection to either was made by trial counsel.'*

While silence may sometimes reflect a prudent tactical assessment

that objection will only magnify prejudice so that failure to object

should not be held against the non-objector, see Werner v. Upjohn

Co. , 628 F.2d 848, 854 (4th Cir. 1980); Leathers v. General Motors

Corp., 546 F.2d at 1086, it may also reflect a deliberate sandbag-

ging tactic, see Skogen v. Dow Chemical Co., 375 F.2d 692, 703

(Sth Cir. 1967), or a tactically sound assessment by the person best

able to judge the matter that though technically objectionable, the

comment threatens no significant prejudice. Without speculating

about possible sandbagging tactics, of which there is no intimation

in the record, we are satisfied that the last possibility is the most

realistic one here.'*

The Golden Rule appeal was made in an opening statement several

weeks before the case was submitted to the jury. It was, in fact,

a rather cryptic interstitial comment which in context may well not

even have conveyed to the jury the impermissible suggestion im-

plied by the term. The issue of compensatory damages on which

it bore was not a thin one that might actually have been tipped by

the suggestion: liability was conceded, substantial damages in some

amount were inevitable given the severity of the injuries concededly

suffered. Cf. Leathers vy. General Motors Corp. , 546 F.2d at 1086

(reversible error where liability issue ‘‘thin’’).

The outright appeal for sympathy occurred some three weeks later

in closing argument by another counsel for plaintiffs. It was the

only such appeal made in an argument lasting some forty minutes

'* Under the circumstances we are not disposed to seize upon this as a basis

for declining review of the specific objections now raised. See New York Central

R.R. v. Johnson, 279 U.S. 310, 318-19 (1928). Whether the failure to object may

then, however, be taken into account in considering the objection on the merits

is a different matter.

'S Eastern’s trial counsel - not the same as appellate counsel - were not general-

ly asleep at the switch nor following a general policy of not objecting in order

to avoid magnification of prejudice. On at least three occasions they did object

to other arguments and comments by plaintiffs’ counsel. None of these, however,

is specifically brought forward by Eastern’s appellate counsel as examples of im-

proper conduct. To the extent this represents disagreement between trial and ap-

pellate counsel as to the potential for prejudice in particular conduct, the former's

assessment may well be assumed to be the better informed.

19d

that was not otherwise objectionable, No comparable direct appeal

for sympathy was made in either of the two other closing arguments

by plaintiffs’ counsel. This was not a drumfire effort. See Moore

v. Teflon Communications Corp. , 589 F.2d 959, 966 (9th Cir. 1978).

It was made in behalf of a terribly injured plaintiff whose condi-

tion as properly presented to the jury was so naturally provocative

of sympathy that the lawyer's overt appeal is best seen in context

as a foolish redundancy rather than an independent source of

prejudice.

We turn now to the verdicts themselves as circumstances indicative

of improper influence. Eastern’s contention on this point is inex-

tricably bound up with its related contention that the damage awards

should have been set aside as per se excessive. While possibly

susceptible to separate conceptual analysis, these contentions are

so closely related that we treat them here together.

The personal injury damage awards were indeed substantial:

$3,027,500 for Arnold's personal injuries; $1,137,500 for

Mihalek’s. The district judge carefully considered the contention

that they were so substantial as to be excessive and manifestly the

products of passion or prejudice, whether traceable specifically to

counsel's misconduct or to unidentified causes. It lay within his

sound discretion to set the verdicts aside if he conceived them to

be excessive without regard to a specific reason, or if he thought

them indicative, either alone or in combination with other cir-

cumstances, that counsel's misconduct had probably inflated them

to the point of excess. It also lay within his sound discretion to deter-

mine that all things considered they were not excessive, hence to

decline to set them aside. This of course he did. Our review of that

determination - without regard to the alleged cause of excessiveness

- is only to assess whether on an independent review of the evidence,

see Grunenthal v. Long Island Rail Road, 393 U.S. 156 (1968);

West v. Richmond, Fredericksburg & Potomac Railroad, 528 F.2d

290, 292-93 (4th Cir. 1975), the awards were so ‘‘untoward, inor-

dinate, unreasonable or outrageous,’’ Grunenthal, 383 U.S. at 160,

that we must set them aside in exercise of our review power. As

Judge Sobeloff pointed out in defining our role in reviewing such

rulings, we are confined to looking for something more than mere

““excessiveness”’:

We operate in a narrower area of discretion than district

courts in the supervision of jury verdicts. It is not enough

if our appraisal of a jury's calculation of damages does

20d

not run parallel to the triai judge's appraisal. In review-

ing the justness of a verdict the broader scope of discre-

tion is in the trial judge, and the Supreme Court has made

it plain that the appellate court must stand aside. The

Court has acknowledged the possibility of appellate in-

tervention only in the most extreme circumstances, as

where the verdict is not merely excessive but

**monstrous,’’ a term borrowed from the old English

case, Beardmore v. Carrington, 2 Wilson 244 (1764).

In very few cases, however, where such a possibility was

discussed has this high hurdle been surmounted.

Simmons vy. Avisco, Local 713, Textile Workers Union, 350 F.2d

1012, 1020 (4th Cir. 1965) (footnote omitted). Or, as Judge Medina

put it for the Second Circuit:

If the question of excessiveness is close or in balance,

we must affirm. The very nature of the problem counsels

restraint. Jusi as the trial judge is not called upon to say

whether the amount is higher than he personally would

have awarded, so are we appellate judges not to decide

whether we would have set aside the verdict if we were

presiding at the trial, but whether the amount is so high

that it would be a denial of justice to permit it to stand.

Dagnello v. Long Island Rail Road, 289 F.2d 797, 806 (2d Cir.

1961) (footnote omitted), quoted with approval, Grunenthal v. Long

Island Rail Road, 393 U.S. at 159.

In conducting this extremely limited review to determine whether

a verdict is not merely excessive but outrageously or monstrously

so, we have recognized that a verdict cannot be so characterized

if there is in the record credible evidence which if accepted by the

jury and given its most favorable inferences will support it. See West

v. Richmond, Fredericksburg & Potomac Railroad, 528 F.2d at 292.

Reviewing on this basis and under this standard we cannot hold these

verdicts outrageous or monstrous in relation to the evidence of

record.

In each of the personal injury cases, the major component in the

damage award was pain and suffering, an item obviously not suscep-

tible to fixing with mathematical precision but instead a matter of

collective juror judgment based upun the relevant evidence and the

commonly shared human experience. It is as to this component that

21d

the inquiry into excessiveness most Cirectly relates.

Looking first to the Mihalek award of $1,137,500, a total of

$7,934 in medical expenses was established without dispute. Though

Eastern sought by careful cross-exarnination to discount the actual

extent of Mihalek’s pain and suffering and loss of past and future

earnings, it offered no evidence directl) refuting plaintiff's evidence.

That evidence would have justified the jury in accepting the following

view of the consequences of the a cident as now contended in

Mihalek’s behalf.

On September 11, 1974, Mitialek, then a forty-five year old

businessman, was a passercer in the first-class section of Flight

212. In the cras’1 he was critically burned, lacerated and battered.

His hands were so burned that the flesh was hanging by the knuckles.

Burns extended over the entire top of his head, and portions of his

forehead, cheek, ear and neck. There were burns on his back, his

right forearm and his elbow. The arm was broken, with the bone

protruding at the elbow. Mihalek was hospitalized for five weeks.

After he was released, he was reqired to make continuing periodic

Visits aS an outpatient for physical therapy well into 1975. He has

a permanent limitation of approximately 22% in the functions of

his various limbs and digits.

The most devastating injuries to Mihalek as a result of the crash

of 212, however, are emotional ones. Before the accident, he was

a good father and family man, an industrious and aggressive

businessman who liked to tackle and solve problems, an outgoing,

energetic individual who was considered by business associates to

be extremely efficient and honest. Before the accident, he had work-

ed his way up at AVCO-Lycoming from a machinist into the posi-

tion of Director of Industrial Engineering. Wiien that organization

closed the facility at which he was employed, Mihalek began his

own company. So successful was this venture that another com-

pany subsequently brought Mihalek out and transferred him to

Charleston, where he was to supervise 40 people in the start-up

of a new facility. Mihalek’s energy, business acumen and super-

visory ability during these years resulted in his annual income ris-

ing from $20,944 in 1970 to $143,988 the year preceding the crash. |

After the accident, Mihalek suffered devastating emotional dif-

ficulties. He was unable to cope with seemingly minor situations,

became very docile and tended to stay at home. He would burst

into tears spontaneously at home, in public, and with friends. He

felt detached, withdrawn, and unmotivated; suffered from loss of

22d

interest and loss of energy; and had difficulty in completing simple

tasks. The most devastating effect on this once-vital man was that

he had lost a sense of power and control over his own life. He had

problems concentrating and he had a sense of unease, dread and

anxiety. His income dropped severely and during the four years

preceding the trial, he had no income at all.

According to an expert psychiatric witness who examined

Mihalek, he suffered from a chronic post-traumatic stress disorder

precipitated by the accident and is permanently psychologically im-

paired because of the accident. According to an expert economics

witness, the present cash value of the actual economic loss to Mihalek

because of the crash of 212 is $520,689 exclusive of such job-related

benefits as life insurance, health insurance and a retirement pen-

sion plan.

Commenting on this evidence, the trial judge cogently observed

that from it ‘‘the jury was entitled to con-

clude... that... Mihalek .. . has suffered a lifetime psychic

disability, and that as a result . . . a once confident, ambitious, and

highly competent business executive has been reduced to passivi-

ty, inactivity and despair... , starting from that premise, there

is nothing excessive or shocking in the award of $1.1 million that,

in addition to the other demonstrated elements of damage, com-

pensates Mr. Mihalek for the lifetime loss of what he was as a per-

son before the accident occurred."’ We would not be disposed to

quarrel with that assessment weve our standard the same as the trial

judge’s. Certainly, gauging it by the narrower standard of

‘‘outrageousness,’" we would not.

Turning to the Arnold award of $3,027,500, the undisputed

evidence established medical expenses of $50,646 and lost wages

of $13,386 as of trial time. As with the Mihalek evidence, Eastern

sought to discount Arnold's evidence of pain and suffering and loss

of future earnings only by cross-examination. From Arnold's

evidence, the jury could have accepted the following view of the

consequences of the crash to him in relation to these items of damage.

At the time of the crash, Arnold, a passenger, was a thirty-one year

old systems engineer employed by IBM. He was a college graduate

who before joining IBM had been honorably discharged as a cap-

tain in the United States Air Force where he programmed computers.

In the crash he suffered multiple iacerations and general trauma,

but his principal injury was by burning. He was severely burned

over extensive portions of his body. Taken after emergency treat-

23d

ment in Charlotte to the Medical College of South Carolina in

Charleston, he was hospitalized there in the Burn Unit of the hospital

for two and a half months where he received extensive treatment

of a painful and emotionally destructive nature.

A total of 33 debridements (the cutting away of dead skin in order

to get to live skin) were performed. He underwent eight skin graft

operations, many of which required that he be put upon a Stryker

frame which suspended him upside down for days. After Mr. Ar-

nold left the hospital, he continued outpatient therapy. He had to

learn to walk again and suffered severe physical deformities. Ad-

ditionally, after his initial stay in the hospital, Arnold underwent

four operations in an attempt to restructure his hand.

The major permanent injuries sustained were to his hands. Ac-

cording to an orthopedic and hand surgery specialist, Arnold's right

hand was 100% permanently disabled and his left hand has a 52%

total permanent disability. The remainder of Arnold’s body was hor-

ribly scarred from the burns and the frequent skin grafting attempts.

The jury viewed the skin on Arnold's body, still terribly deformed

after five years. According to an expert psychiatric witness, Ar-

nold suffers from a chronic neurotic illness which he would con-

tinue to have unless he went into intensive psychotherapy, and in

consequence looks upon hiniself as a defective individual.

In commenting upon Arnold's evidence of pain and suffering,

the trial judge remarked that ‘‘though dramatic"’ it was ‘‘credible

and without parallel in the experience of the trial judge’* and stated

that “‘in combination with the lifetime disfigurement and disability

proved at trial and other proved damages, [it] renders the $3 million

award neither excessive nor shocking.’’

Reading the cold record, we might be more adversely affected

by the apparently contrived dramatization of some of Arnold's

testimony than was the trial judge in whom it only prompted a pass-

ing characterization. But this simply illustrates the reason why our

discretion in review is wisely made narrower than his in assessing

the probative force of this kind of evidence. We are not prepared

to say that the size of this verdict does more than make the ques-

tion of excessiveness with us a close one. As indicated, that is not

enough to justify substituting our judgment for that of the trial judge.

He had the supreme advantage of assessing not only Arnold's de-

meanor as a witness and his personal appearance but also of gaug-

ing the immediate reaction of the jury to his patent over-

dramatization of events and conditions and his rather obvious ef-

forts at ingratiation.

24d

When all is discounted, there remains the fact that Arnold has

sustained at age thirty-one injuries which, in addition to the im-

mediate consequences of profound physical and emotional shock,

intense post-crash suffering, and painful and demeaning medical

treatment, have left him, after the best endeavors of medical science,

a relatively young man permanently disabled in essential body func-

tions, permanently scarred and disfigured in physical appearance,

and permanently damaged emotionally and psychologically. Though

he remains a functioning human being, he has been substantially

shattered as the whole person he was before the crash, and will live

out his days suffering the consequences. An award of $3 million

to compensate him for these consequences in addition to his direct

monetary losses and expenses is undoubtedly a generous one and

one which might in the exercise of sound trial court discretion have

been deemed excessive, but we cannot say of it that it is so monstrous

or Outrageous tha’ we should intervene in the jury's fact-finding

function to disturb it at the appellate level. See generally 11 C.

Wright & A. Miller, Federal Practice and Procedure: Civil § 2820

& nn.95, 97 (1973).

In sum, upon considering the totality of the circumstances bear-

ing upon the matter, we cannot say that it is reasonably probable

that counsel's misconduct - objectionable as it was in many details

- improperly inflated these damage awards. There are too many

other and proper bases upon which their concededly generous

amounts may be explained.'* To indulge such an assumption would

be to denigrate a jury which to all appearances of record was not

'® In this connection it is appropriate to note another improper basis which, if

accepted, would have provided an independent discretionary ground for setting

aside the verdict. This is the possibility that the verdicts represented an improper

jury ‘‘compromise’’ of the punitive liability and compensatory damage issues.

The trial judge in fact recognized this as a possibility, but in the end of course

did not seize upon it as an alternative independent ground for setting the verdicts

aside. On this appeal counse! for appellants belatedly seek by this ‘‘compromise’’

theory to trace the prejudice from counsel's misconduct away from the punitive

damage issue - on which they won - into the compensatory damage awards. In

this they meet themselves coming back. In the trial court they contended - oppos-

ing the possibility of a new trial on both issues and arguing instead for new trial

on the compensatory damage issue alone - that the jury had not so entwined the

issues in its verdict that it was wholly tainted. While the well established pro-

cedural bar to such changes of position is not an absolute one and should yield

in appropriate circumstances, we see no reason to depart from it here. There was

no adversary presentation of this possibility in the district court.

25d

in a “‘runaway’* mood in which it would be likely prey to such in-

fluences. It would also be to assume that the various cautionary in-

structions of the trial judge, only some of which we have specifically

noted,'’ were disregarded by the jury. We think that instead we

must presume on this record both that the jury understood and was

faithful to its general mandate and that it was responsive to the

specific cautionary instructions. Neither are we prepared to say upon

an independent review of the evidence, see Grunenthal v. Long

Island Rail Road, 393 U.S. at 159-60, that the amounts of these

awards are so outrageous, or untoward, or monstrous that, irrespec-

tive of cause, they must be set aside in exercise of our narrowly

constrained appellate review powers. See Neese v. Southern Railway,

350 U.S. 77 (1955).

For many of the same reasons, we much more readily conclude

that counsel's misconduct cannot be declared a ‘‘reasonably pro-

bable’’ explanation of the jury's verdict against Aetna on its con-

tribution claim. Laying aside all the other factors, the critical cir-

cumstance here is that, to us, the issue of concurring negligence

- of proximate causation - on which this claim turned, simply can-

not be assessed as one so ‘‘close’’ that we would be justified in

attributing the verdict upon it to any such improper influence. While

the issue going in was obviously an honestly disputable one, the

evidence adduced readily explains the jury's determination that if

there was any negligence on the part of the air traffic controllers

it was, in the district court's stated analysis, a ‘‘remote rather than

a proximate cause.’’ '* We are not prepared to reject that ready

and proper explanation in favor of the improper one for which Aetna

contends. Obviously we find no abuse of discretion in the district

court's refusal to set aside this verdict on this ground,

Ill

Eastern and Aetna have either jointly or independently assigned

other errors which we have considered, found not to require rever-

sal, and merely identify here without extended discussion.

Eastern complains of the admission of evidence concerning crashes

that occurred after the one here in issue. We agree with appellees

'? See notes 7, 11, 13 supra.

'* Made in deciding the contribution claim against the United States non-jury.

See note 8 supra.

26d

that in the peculiar context of this trial and particularly in view of

Eastern’s attempt in earlier testimony to establish an improving safety

record at the critical time, the district court did not abuse its discre-

tion in admitting this evidence as relevant, both for direct and rebut-

ting purposes, to essential elements of the punitive damages claim.

On Eastern’s and Aetna’s challenge to the district court's findings

and conclusions exonerating the United Siates from liability for con-

tribution, we find no clear errors of factual finding nor errors of

law justifying reversal. Indeed we find the findings and conclusions

unassailable on the evidence adduced. Aetna has complained of the

court's instructions to the jury on the contribution issue, but after

a review of those instructions in total compass we find no prejudicial

error. We think that the instructions properly explained the rele-

vant principles of concurring negligence and proximate causation

that controlled resolution of the contribution issue. Finally, we see

no error in the district court's refusal to admit Aetna’s proffer of

certain evidence related to improper training and supervision of the

air traffic controllers, Other evidence on the issue was admitted,

and the district court's exercise of its discretion in refusing the ad-

Jitional proffers was not improper.

On Eastern’s challenge to the district court's action in allowing

the Weston wrongful death plaintiff to accept a remittitur of $50,000

and entering judgment on the reduced verdict we find error which,

regrettably, requires reversal and remand.

Before the jury retired, counsel for Eastern duly objected to the

submission to the jury of pain and suffering as a compensable item

of damages on the wrongful death claim. The basis of this objec-

tion was that there was insufficient evidence that Weston had sur-

vived the crash even momentarily to permit an inference that he

consciously experienced any pain. The district judge permitted the

jury to consider the question, but in his written ruling upon Eastern’s

post-verdict motions to set aside the verdict, he stated that upon

reflection he was persuaded that he had committed ‘technical er-

ror’’ in submitting this as a recoverable item of damages. On that

basis he ordered a new trial on damages alone conditioned upon

plaintiff's refusal to accept a remittitur of $50,000. When plaintiff

accepted the remittitur in this amount, the court entered judgment

in the reduced amount of $797,000. We express no opinion as to

whether this issue properly should have been presented to the jury,

27d

but we nevertheless hold that the use of the remittitur device here

was improper.

Having accepted the remittitur, the plaintiff did not, as she could

not, Donovan v. Penn Shipping Co., 429 U.S. 648 (1977), appeal

from the resulting judgment. In consequence, on Eastern’s appeal

the only issue presented for review is the propriety of the district

court's action in allowing the remittitur as a means of correcting

its perceived error. The precedent ruling, that trial court error made

the verdict unsupportable in the amount awarded, is not properly

belore us for review. Only the plaintiff, as the party aggrieved by

it, could challenge it on appeal. Though as appellee she has sought

to do so, contending that pain and su “ering was properly submit-

ted, she is limited as appellee to defending, on any grounds available

on the record, the judgment as entered and may not seek to enlarge

her righis under it, as would a successful attack upon the ruling.

United States v. American Railway Express Co., 265 U.S. 425, 435

(1924).'® Our review is therefore limited to the issue raised by

Eastern’s appeal on this point: whether the corrective action

thereafter taken by the trial court was proper. We hold that it was not.

Remittitur may properly be used to remedy an excessive award

of damages made by a properly instructed jury if the award is not

attributable to passion or prejudice. See generally 6A Moore's

Federal Practice ¢ 59.05(3). But we agree with those courts that

have held that it may not properly be used over a defendant's ob-

jection to remedy a trial judge’s error unless the amount of the award

traceable to that error can be at least closely approximated or cap-

ped by a maximum figure through resort to the trial record. See

'% We note that in Durant v. Surety Homes Corp., 582 F.2d 1081, 1085 (7th

Cir. 1978), the court held that a plaintiff in a comparable situation was entitled

as appellee to challenge such a precedent ruling ‘‘[flor the limited purpose of defen-

ding the remitted judgment.’’ While this approach may have first blush attrac-

tiveness, in view of the now-settled federal rule that a plaintiff who accepts a remit-

titur may not appeal from the remitted judgment, Donovan v. Penn Shipping Co.,

429 U.S. 648 (1977), we respectfully disagree with it. The rule that prohibits an

appellee from attempting to enlarge rights under a judgment is a long-standing

and salutary one that serves important ongoing procedural values. We fail to see

how allowing an attack on the precedent ruling here has the ‘limited purpose”’

of - or is indeed at all necessary to - merely defending the remitted judgment.

To allow it is to permit direct circumvention, in any case where the defendant

appeals a remitted judgment, of the Donovan prohibition against remitting-plaintiff

appellate challenges. Perhaps significantly, the Durant court, reviewing the prece-

dent ruling at appellee's behest, found no error in it.

28d

Durant v. Surety Homes Corp., 582 F.2d 1081, 1085-86 (7th Cir.

1978); Jacoby v. Johnson, 120 F. 487, 488-89 (3d Cir. 1903); see

also New York, C. & St. L. R. Co. v. Niebel, 214 F. 952, 957-58

(6th Cir. 1914) (appellate court similarly limited). Where, as in this

case, a jury's undifferentiated lump sum damage award?° is made

up of a number of properly compensable items and one noncompen-

sable item, use of remittitur involves judicial correction of a jury's

verdict by a process of determining ‘‘an unknown fraction of an

unknown portion of an unknown whole,’’ Niebel, 214 F. at 958.

This goes beyond the traditional bounds of the device for correc-

ting jury excess and impermissibly impinges upon the right of the

defendant ‘‘to have the damages assessed by a jury under proper

instructions by the court.’’ Jacoby v. Johnson, 120 F. at 488. To

correct this error there was, in unfortunate consequence, but one

recourse for the trial court and even more unfortunately there is

now for us but the same recourse?! - to require a new trial on the

damage issue as the defendant's due. /d.??

20 It is this aspect that distinguishes the instant case from those cited by plaintiff

as support for the court's use of remittitur here. In both Bonn v. Puerto Rico Int'l

Airlines, Inc., 518 F.2d 89 (1st Cir. 1975), and Jones v. Wittenberg Univ., 534

F.2d 1203 (6th Cir. 1976), remittiturs were upheld in wrongful death actions on

the basis that the awards were excessive in their pain and suffering components.

In neither, however, had the court erred in submitting this as a compensable item

and in both the juries returned special verdicts which broke out the exact amounts

awarded for this item. In these cases therefore the maximum amounts attributable

to the challenged components were known and the remittitur was simply to reflect

a jury excess as to those separable components.

2! We cannot find the error harmless, as the plaintiff suggests we might, on

the basis that the remitted award lies clearly within a permissible total range of

properly compensable items. The very problem which makes remittitur improper

here is that neither we nor the trial court has any possible way of knowing what

amounts may have been assigned by the jury to the various items. For all we can

tell the amount assigned the uncompensable item may have bitten into the outer

limit of amounts properly, but not necessarily, assigned to compensable items.

Under the state wrongful death statute, N.C. Gen. Stat. § 28A-18-2(b) (4) (1981

Supp.), and the court's instructions, several of these are unliquidated.

22 The sole issue before the district court upon remand is that of compensatory

damages. The district court's suggestion that if a new trial were ordered on ap-

peal it would be conducted as to both punitive damage liability and compensatory

damages is of no force. The district court denied plaintiffs’ motion for a new trial

on the punitive damages liability issue, and plaintiffs did not appeal from that order.

This ruling, unappealed, was not in consequence subject to defense by Eastern

on appeal and Eastern is entitled to have it treated as the law of the case. See

F. James & G. Hazard, Civil Procedure § 11.5 (2d ed. 1977).

29d

The judgment is affirmed in all respects save that respecting the

Weston wrongful death claim. As to that claim the judgement is

reversed and remanded for further proceedings consistent with this

opinion.

AFFIRMED IN PART;

REVERSED AND

REMANDED IN PART.

MURNAGHAN, Circuit Judge, concurring in part and dissenting

in part:

The overburden on our federal judicial system is no little matter.

Judge McMillan faced an aggravated strain on the orderly func-

tioning of his court as an aftermath of a tragic airplane crash. Eastern

Airlines flight 212 on September 11, 1974 plummeted to earth near

Charlotte, North Carolina, killing 69 passengers and 2 crew

members. Nine passengers and 2 crew members survived.

The following lawsuits piled up in the United States District Court

for the Western District of North Carolina, threatening a massive

legal traffic jam:

1. The action of Richard Arnold IV for personal injuries;

2. The action of Francis C. Mihalek for personal injuries;

3. The action of Helen Rae Weston, as executrix, for the

wrongful death of her husband, Lewis D Weston;

4. The action by The Aetna Casualty Company and other in-

surers of Eastern Airlines under the Federal Tort Claims Act, 28

U.S.C. § 2674, against the United States, and under North Carolina

common law against four air traffic controllers, claiming negligence

which assertedly caused the crash.

The claims of the insurers sought indemnification or contribu-

tion for settlements made with more than 70 other victims of the

crash or their next of kin.

for compensatory damages in all three sccident cases but denied

liability for punitive damages and put the three plaintiffs to their

proof as to the amounts of compensatory damages.

30d

Obviously, if each of the actions were separately tried, it would

take months to dispose of all the litigation generated by a single

incident. Some cooperation designed to relieve the situation took

place. The parties did not contest the consolidation for trial of the

Arnold, Mihalek and Weston cases.

Judge McMillan decided, however, that things must go further

in that direction. He, sua sponte, but over the objection of Eastern

Airlines and of the insurance companies, ordered all the cases

consolidated.

To try all the cases together admittedly presented problems of

some substance. First the consolidation of the three accident cases

with the claims of Aetna and the other Eastern insurers seeking in-

demnification or contribution necessarily meant a disclosure to the

jury that Eastern Airlines was insured, and that insurance carriers,

rather than Eastern Airlines itself, would bear all or a substantial

portion of any award to Arnold, Mihalek or Weston. It is, of course,

well established that such information should, to the greatest ex-

tent possible, be concealed from the jury. E.g., City of Cleveland

v. Peter Kiewit Sons’ Co., 624 F.2d 749 (6th Cir. 1980); Langley

v. Turner's Express, Inc., 375 F.2d 296 (4th Cir. 1967); Fincher

v. Rhyne, 266 N.C. 64, 145 S.E.2d 316 (1965). See Fed. R. Evid.

411. (‘Evidence that a person was or was not insured against liability

is not admissible upon the issue whether he acted negligently or

otherwise wrongfully.’ ).

Second, the insurance companies, to quantify their claims, would

have to bring out just what they had paid in settlement to crash vic-

tims or their next of kin. Those awards totaled almost $22 million

- an average recovery of over $314,000 - and could well influence

the jury to apply some kind of victim fungibility rule (‘‘If the loss

of Jones injured his family to the extent of $314,000 certainly Smith's

-- or Weston’s -- family should be treated no less handsomely’’).

Of course, the peculiar and varying facts of each case should be

determinative, with no attention paid to what some other unfortunate

victim got.

I am ready to assume, for the purposes of this case that, despite

difficulties which customarily would dictate separate trials, con-

solidation of all the cases was, nevertheless at least theoretically

proper, in view of the great dislocations that otherwise were in store

for the Western District of North Carolina. Fed. R. Civ. P. 42(a).

But, by the same token, the very elimination of customary

safeguards, regarded as necessary to insure fairness in the courts,

31d

imposed a heightened need to insist on scrupulous fairness in all

other aspects of the trial of the consolidated cases. Otherwise the

Fed. R. Civ. P. 42(b) mandate to the district court that it conduct,

if necessary, separate trials to avoid prejudice would be consigned

to the dead letter heap.

Eastern Airlines was the one from whom customary safeguards,

for reasons of overriding exigencies, were withdrawn. It did not,

as the cases proceeded through trial, receive scrupulously fair treat-

ment. Quite to the contrary, it was subjected to abusive and over-

reaching behavior recognized by Judge McMillan himself as ex-

cessive -- beyond the normal leeway allowed counsel under the ex-

citement and tension of a hotly contested trial.'

' Some examples of improprieties are set out here. Mr. Hemric, representing

Richard Arnold, had this to say to the jury:

I'm asking, I'm, begging for your sympathy for this man and for all the

passengers on that plane . . . They [the plaintiffs] are begging for your pity.

Mr. Diehl, also counsel for Richard Arnold, asked the jury to put itself in plain-

tiffs shoes:

Let's talk about compensation a minute. After much squabbling, we got

in the photos of the airplane crash, the heat, the wreckage, the fire, the

destruction, Richard Arnold--what a guy just out of an airplane looks like

burned, burned over 47 percent of his body, third degree, second

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