Petition for Writ of Certiorari — Lockheed Aeronautical Systems Co. v. Gray
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O97 1209 JAN 2 2 9%
No. OFFICE OF THE CLERK
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1997
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a Division
of LOCKHEED CORPORATION
- Petitioner,
Vv.
STACY C. GRAY, ef al.
Respondents.
‘Petition for Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
EDGAR A. NEELY, Ill RICHARD M. SHARP*
RICHARD B. NORTH, JR. FREDERICK C. SCHAFRICK
NELSON MULLINS RILEY& SHEA & GARDNER
SCARBOROUGH, L.L.P. 1800 Massachusetts Ave., N.W.
999 Peachtree Street, N-E. Washington, D.C. 20036
Atlanta, GA 30309 (202) 828-2000
(404) 817-6000
Attorneys for Petitioner
January 22, 1998 *Counsel of Record
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QUESTION PRESENTED
This case presents the same question as that on which the
Court has granted certiorari in Dooley v. Korean Air Lines Co.,
No. 97-704. Restated, that question is:
May a court supplement the pecuniary damages recovery
expressly authorized by Congress in the Death on the High
Seas Act with an award under the general maritime law of
_ nonpecuniary damages for the decedent’s Letons pain and
eared
suffering? a ENG: rnmnnneeo eo
LIST OF PARTIES
The petitioner herein is Lockheed Aeronautical Systems
Company, a Division of Lockheed Corporation (now Lockheed ,
Martin Aeronautical Systems Company, a Division of Lockheed ;
Martin Corporation).
Respondents (plaintiffs in the District Court) are:
Stacy C. Gray, individually and as Surviving Spouse of Lt.
Douglas G. Gray, and as Personal Representative of Lt.
Douglas G. Gray, Deceased;
“Grace M-Schumacher—individuall + as Surviving Parent
of Lt. John T. Hartman, and as Personal Representative of
Lt. John Hartman, Deceased; and
Wilma J. Jennings, individually, and as Surviving Parent of
Lt. David S. Jennings, and as Personal Representative of Lt.
David S. Jennings, Deceased. .
The United States was named as a defendant in the
complaints, but was dismissed prior to trial.
ili
RULE 29.6 LISTING
‘While this litigation was pending, the name of petitioner
Lockheed Aeronautical Systems Company, a division of
Lockheed Corporation, was changed to Lockheed Martin
Aeronautical Systems Company, a division of Lockheed Martin
Corporation. Lockheed Martin Corporation has the following
subsidiaries that are not wholly owned:
Aditivos Y Minerales Aminesa, SA;
Aeroplex of Central Europe;
Airport Group Canada, Inc.;
“Airport Group Intemational GmbH; —
Airport Group International Holdings, LLC;
Airport Group International, Inc.;
Airport Group United Kingdom Ltd.;
Alliance Emirates Development Co.;
Automated Test International Ltd. Partnership;
Bayou Mining, Inc.;
Beijing Huayun Meteorological Radar Systems Co. Ltd.;
Bocep Ventures;
CalComp Technology, Inc.;
Cure, Inc.;
Danish Aerotech A/S;
Earth Observation Satellite Company;
EO Systems International, Ltd.;
Euro-Art Radar Technology GmbH; 6
GETAC Corp.;
Glendale Respondents Group, LLC;
Guangzhou Aircraft Maintenance Engineering Co. Ltd.;
Gulf Diagnostic Centre;
Gulf Technology Systems Group;
Hellenic Business Development/Investment Co., S.A.;
Hellfire Systems, LLC;
Kongsberg/Lockheed Martin Space Data Services AS;
L3 Communications Holdings, Inc.;
iv
LAH Limited;
L/E Systems Corp.;
Letlock-Saudi Arabia;
LMC MMT Strategic Alliance Committee, LLC;
Lockheed Aircraft Argentina, S.A.;
Lockheed Aircraft International Ltd.;
Lockheed Investment Holding Co., A.S.;’
Lockheed Khrunichev Energia International Inc.;
Lockheed Martin Canada, Inc.;
LM Chemical Demilitarization, LLC;
Lockheed Martin GmbH;
Lockheed Martin IMS/Transfield JV Pty Ltd Company;
Lockheed Martin Int’! Commerical Sales, Inc.;
Lockheed Martin Intersputnik, Ltd.;
Lockheed Martin Logistics International, Inc.;
Lockheed Martin Tactical Systems UK Ltd.;
Lockeed Martin Yatirim Holdings, AS;
Lockeed Middle-East Services;
Longbow LLC;
Loral Space and Communications Ltd.;
Martin Marietta EO Associates (Europe), Inc.;
MEADS International, Inc.;
MedDetect, LLC;
Microelectronics and Computer Technology Corp.;
Mid-South Weaver;
MLRS Internationa! Corporation;
Narda International Corp. (The);
Narda Microwave Corporation (The);
New Cure, Inc.;
New Mexico Technology ulond LiL;
NS CalComp Corp.;
NV CalComp S.A..;
Pacific Aerospace Corp. Ltd.;
PDES, Inc.;
___Servicios Tecnicos Lockheed Martin de Mexico,SAdeCV; ts
PGM Systems, Ltd.;
PGSUS, LLC;
Radarsat International, Inc.;
Rational Software Corp.;
Real 3D, Inc.;
RGE Engineering Service Company;
RLM Holdings, Pty, Ltd.; \
Satphone;
SIKA International Limited;
Sky Solutions;
Software Productivity Consortium, Inc.;
Software Productivity Consortium Ltd. Partnership;
Space Imaging, Inc.;
Standard Magnesia L1d.;
Suramericana de Refractarios, CA;
Team Apache Systems, Inc.;.
Telstar Systems Proprietary, Limited;
Fl/Martin Javelin Joint Venture;
Toshiba Electronic System Co., Ltd.;
Tusas Aerospace Industries, Inc.;
United Space Alliance, LLC;
United Missile Defense Company, LLC;
Valley Association Corporation;
Vega Aircraft Company;
Western Investor Technology Group, Inc.;
Western Investor Technology Group LP;
WITG, LLC
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TABLE OF CONTENTS
PAGE
QUESTION PRESENTED «..........0.. cee cee ap eee
ES GE PAAR UE s wie vn ies e ce waver eee ns ok gues ii
ULES £9 WOE oho tees OS BERLE eee oe Fe eae ili
v
OPINIONS BELOW ........... Le geste sh peneehes |
PIAA 6 6 Ahaha Coke eesti sedecews 2
STATUTORY PROVISIONS INVOLVED ............ 2
STATEMENT OF THE CASE ...... PUL a bad wane we 3
s The District COE PRCT, oo ie A Soe ys 3
2. The Court of Appeals’ Decision. ................ 5
REASONS FOR GRANTING THE WRIT ...........-.. 6
A. There Is a Square Conflict in the Circuits......... 8
B. This Case Raises an Important and Recurring Issue
of Admiralty Law. ...............-2000-0000- 9
C. The Decision of the Eleventh Circuit Raises
Important Issues of Judicial Power To Create Extra-
Statutory Remedies. ..........s. csc cceecee: 11
CONCLUMION 2 eee oS 13
APPENDIX A (Opinion of the Court of Appeals) ...... la
APPENDIX B (Opinion of the District Court) ........ 33a
4
Vil
TABLE OF AUTHORITIES
Page
Cases
Azzopardi v. Ocean Drilling & Exploration Co.,
742 F.2d 890 (Sth Cir. 1984) ......-.. 2. eee ee. 5, 6,8
Barbe v. Drummond, ‘
S07 28 FOR Chat Car, 1974) oo os os haa ha 6,8
City of Milwaukee v. Illinois,
a Tee 6 ES. NAIA EAR amas Sain ieeoniairaean Ae Pee yy 13
Evich v. Connelly,
759 F.2d 1432 (9th Cir. 1985) ........--.-. mek 6,9
Evich v. Morris,
819 F.2d 256 (9th Cir.),
cert. denied, 484 U.S. 914 (1987)... 2... 6... ee ee. 9
Forman v. Korean Air Lines Co.,
84 F.3d 446 (D.C. Cir.),
cert. denied, 117 S. Ct. 382 (1996)... eee 10
In re Ais’ Crash off Long Island,
S65. Sao 5 a ths OTD kk SR 10
In re Inflight Explosion, 778 F. Supp. 625
(E.D.N.Y. 1991), rev'd on other grounds
sub nom. Ospina v. Trans World Airlines, Inc.,
975 F.2d 35 (2d Cir. 1992),
cert. dented, S07 U.S. WS (1993) 6 cies eee es 10
Vill
Page
In re Korean Air Lines Disaster,
117 F.3d:1477 (D.C. Cir. 1997),
cert. granted sub nom.
Dooley v. Korean Air Lines Co., |
No. 97-704 (Jan. 9, 1998) .... 02.2.0. eee ee passim
Kuntz v. Windjammer “Barefoot” Cruises, Ltd.,
___573 F. Supp. 1277 (W.D. Pa.1983),
‘aff'd mem., 738 F.2d 423 (3d Cif. Jy nen enero
cert. denied, 469 U.S. 858 (1984)................ 6,8
Peer
Law v. Sea Drilling Corp.,
523 Fide toe (ou Cis 1979) 6k ak MUS 1. Uae 4
Miles v. Apex Marine Corp.,
498 U.S. 19 (1990) .... 6-66. e cece eee eee eee passim
Mobil Oil Corp. v. Higginbotham,
me St is passim
Moragne v. States Marine Lines,
398 U.S. 375 (1970) ........: MF ra Sees aa Gig ties 6
Offshore Logistics, Inc. v. Tallentire,
RET hE Ul MO aa SN as ERROR Sy CRW eR vee Oe 7
Oldham v. Korean Air Lines Co.,
PSG ee Pi S woe OL. 18 Reale oan ne er peer 10
Siciadlie v. Korean Air Lines Co.,
93 F.3d 547 (9th Cir.),
cert. denied, 117 S. Ct. 584 (1996)............. 5,8,9 ys
1X
Page
Spiller v. Thomas M. Lowe, Jr. & Associate, Inc.,
466. F.2d 903: (Sth Ciz. 1972) io ae as 6,9
St. Louis, Iron Mt. & S. Railway v. Craft,
237 US. CAR CGI: oi ea ee 12
The Harrisburg,
TIDUS. 199 (SRG) ioe See 6
Yamaha Motor Corp., U.S.A. v. Calhoun,
S1G US: 99 OG oS SG ss eas 7
Zicherman v. Korean Air Lines Co.,
S16 US: TIT) es Niee 7
Statutes
Death on the High Seas Act, 46 U.S.C. app. §§ 761-768 .. 3
GUSC am. 8761 eee 2
AGU SC C8 Wl 6 ie ee 2,4
464S.C. app: $ 168 2 SS 3
somes Act, 46-05. gee 6 OCS og i as Cees 1]
MUSE 6S GA ERA 2
MUSC £138 6 kaa ae 3
WSUS ees Se Bie wes 12
Page
Miscellaneous
H.R. 2005, 105th Cong., Ist Sess (1997)
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1997
No. ——
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a Division
of LOCKHEED CORPORATION
Petitioner,
V,
STACY C. GRAY, ef al.
Respondents.
Petition for Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Petitioner Lockheed Aeronautical Systems Company
respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Eleventh
Circuit. | |
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 125 F.3d
1371 and is reprinted in the Appendix (“App.”) at pages 1a-32a.
2
z
The opinion of the District Court is reported at 880 F. Supp.
1559 and is reprinted at App. 33a-59a.
JURISDICTION
The judgment of the Court of Appeals was entered on
October 24, 1997. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
STATUTORY PROVISIONS INVOLVED.
Section | of the Death on the High Seas Act, 46 U.S.C. app.
§ 761:
“Whenever the death of a person shall be caused by.
wrongful act, neglect, or default occurring on the high seas
beyond a marine league from the shore of any State, or the
District of Columbia, or the Territories or dependencies of
the United States, the personal representative of the decedent
may maintain a suit for damages in the district courts-of the
United States, in admiralty, for the exclusive benefit of the
decedent’s wife, husband, parent, child, or dependent
relative against the vessel, person, or corporation which
would have been liable if death had not ensued.”
Section 2 of the Death on the High Seas Act, 46 U.S C. app.
§ 762:
“The recovery in such suit shall be a fair and just
compensation for the pecuniary loss sustained by the persons
for whose benefit the suit is brought and shall be
apportioned among them by the court in proportion to the
loss they may severally have suffered by reason of the death
of the person by whose representative the suit is brought.”
—-
3
Section 5 of the Death on the High Seas Act, 46 U.S.C. app.
§ 765:
“If a person die’ as the result of such wrongful act,
neglect, or default as is mentioned in section 761 of this
Appendix during the pendency in a court of admiralty of the
United States of a suit to recover damages for personal
injuries in respect of such act, neglect, or default, the
personal representative of the decedent may be substituted
as a party and the suit may proceed as a suit under this
chapter for the recovery of the compensation provided in
section 762 of this Appendix.”
STATEMENT OF THE CASE
On October 7, 1989, a Navy S-3 “Viking” aircraft crashed
shortly after takeoff from the aircraft carrier U.S.S. John F.
Kennedy. Three of the airplane’s four crew members were
killed in the accident, which occurred approximately 125 miles
off of the coast of Virginia (App. 36a, 38a). :
1. The District Court's Decision. In October 1991, the
personal representatives of the three deceased crew members
brought suit in the United States District Court for the Northern
District of Georgia against Lockheed Aeronautical Systems
Company (“Lockheed”), the manufacturer of the accident air-
- craft. Because the accident had occurred on the high seas,
plaintiffs invoked the court’s admiralty jurisdiction (28 U.S.C.
§ 1333), and asserted claims against Lockheed under the Death
on the High Seas Act (46 U.S.C. app. §§ 761-768 (“DOHSA”))
and the general maritime law (App. 34a). Following a bench
trial, the District Court found Lockheed liable for the accident
in an opinion entered on March 34, 1995 (App. 33a). In that
“So in original. Probably should be ‘dies.”” [This footnote appears in
the U.S. Code.]
4
opinion, the District Court also awarded damages totaling
$4,225,000 to the families and estates of the three decedents
(App. 58a-59a).
Of relevance here, the District Court concluded—over
Lockheed’s objection-—that it was permissible to award
damages under the general maritime law for the decedents’ pre-
death pain and suffering (App. 53a-56a). The court recognized
that the Death on the High Seas Act “sets allowable damages as
‘a fair and just compensation for the pecuniary loss sustained by
the persons for whose benefit the suit is brought.’” (App. 53a
(quoting 46 U.S.C. app. § 762).) The court, moreover,
acknowledged that Mobil Oil Corp. v. Higginbotham, 436 U.S.
618 (1978), had held that courts could not supplement the
DOHSA recovery of pecuniary damages with an award to
family members under the general maritime law of
nonpecuniary damages for the loss of the decedent’s society
(App. 54a). The District Court, however, ruled that,
notwithstanding Higginbotham, plaintiffs could recover
nonpecuniary damages for the decedent’s pre-death pain and
suffering. The court stated that there was a distinction between
‘survival’ damages and ‘wrongful death’ damages.”’ (App.
53a.) The court reasoned that Higginbotham’s holding was
limited to “wrongful death” damages and did not preclude an
award under a general maritime law “survival” action of
damages for the decedent’s pain and suffering:
““Like DOHSA itself, Higginbotham treats solely wrongful
death and wrongful death damages; it does not address
survival actions. Given this, Higginbotham cannot be read
*The court explained the difference as follows: “‘[A] survival action
compensates the decedent's estate for damages incurred by him personally
while wrongful death recovery compensates the decedent’s dependents and
other survivors for the damages they incurred due to the death.’” (App. 53a
(quoting Law v: Séa Drilling Corp., 523 F.2d 793, 795 (Sth Cir. 1975).)
5
as authority for the proposition that DOHSA precludes a
survival action in the case of deaths occurring on the high
seas.”” (App. 54a (quoting Azzopardi v. Ocean Drilling &
Exploration Co., 742 F.2d 890, 894 (Sth Cir. 1984).)
The District Court, accordingly, concluded that “Plaintiffs
have viable survival claims under general maritime law” under
which they could recover “pain and suffering damages.” (App.
55a.) In accord with this ruling, the court awarded the estate of
each decedent $50,000 for that decedent’s pain and suffering
(App. 58a-59a).
2. The Court of 4 >peals' Decision. On appeal, the Court of
Appeals for the Eleventh Circuit affirmed the District Court’s
decision in ali material respects (App. 1a),’ including that
court’s award of survival damages for pain and suffering (App.
20a-31a). The Court of Appeals acknowledged that “recent
decisions in the Ninth and District of Columbia Circuits . . .
support the proposition that general maritime law survival
action claims and/or pain and suffering damages are unavailable
when a death occurs on the high seas.” (App. 20a (citing |
Saavedra v. Korean Air Lines Co., 93 F.3d 547, 554 (9th Cir.), |
cert. denied, 117 S. Ct. 584 (1996); In re Korean Air Lines
Disaster (“Deoley”), 117 F.3d 1477, 1481-83 (D.C. Cir. 1997),
cert. granted sub nom. Dooley v. Korean Air Lines Co., No. 97-
704 (Jan. 9, 1998)).) The Court of Appeals, however,
characterized the Ninth and District of Columbia Circuits
decisions as “unpersuasive.” (App. 20a.) Instead, the court held
that “the district court in this case properly followed our
colleagues in the First, Third, Fifth and Eighth Circuits in
recognizing a general maritime survival remedy and in
*The Court of Appeals did remand the case for a determination of 3h
whether plaintiffs should have been awarded prejudgment interest (App.
32a). This claim has now been settled by agreement of the parties.
6
permitting this remedy to supplement appellees’ recovery under
DOHSA.” (App. 30a-31a (footnote omitted; citing Barbe v.
Drummond, 507 F.2d 794, 800 (1st Cir. 1974); Kuntz v.
Windjammer “Barefoot” Cruises, Ltd., 573 F. Supp. 1277, 1286
(W.D. Pa. 1983), aff'd mem., 738 F.2d 423 (3d Cir.), cert.
denied, 469 U.S. 858 (1984); Azzopardi v. Ocean Drilling &
Exploration Co., 742 F.2d 890, 894 (Sth Cir. 1984); Spiller v.
Thomas M. Lowe, Jr. & Assocs., Inc., 466 F.2d 903, 909-10 (8th
Cir. 1972)).) Lockheed now seeks review of this decision.
REASONS FOR GRANTING THE WRIT
This petition raises an important question of federal law that
_this Court has expressly left open in the recent past and that is
likely to arise repeatedly in litigation over fatal aviation and
boating accidents on the high seas: Whether the-courts may
supplement the award of pecuniary damages authorized by the
Death on the High Seas Act with an award, under a general
maritime law survival action, of nonpecuniary damages for the
decedent’s conscious pain and suffering.
Eight years ago, the Court in Miles v. Apex Marine Corp.,
498 U.S. 19 (1990), noted that “[s]everal Courts of Appeals
have relied on Moragne[*] to hold that there is a general
maritime right of survival.”* The Court, however, “decline[{d]
to address the issue, because its resolution is unnecessary to our
*In Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), the
Court overruled The Harrisburg, 119 U.S. 199 (1886), and held that an
action could be brought under the general maritime law for the wrongful
death of a longshore worker in the state territorial waters.
*498 U.S. at 34 (citing Spiller v. Thomas M. Lowe, Jr. & Assocs., Inc.,
466 F.2d 903, 909 (8th Cir. 1972); Barbe v. Drummond, 507 F.2d 794, 799-
800 (1st Cir. 1974); Law v. Sea Drilling Corp., 523 F.2d 793, 795 (Sth Cir.
1975); Evich v. Connelly, 759 F.2d 1432, 1434 (9th Cir. 1985)).
en ae ee
« Oe Para yarn ino
me RAY
7
7
decision... .” 498 U.S. at 34.° Two Terms ago, the Court
again left open the question of whether the pecuniary damages
recovery under DOHSA may be supplemented by a recovery of
nonpecuniary damages for the decedent’s conscious pain and
suffering. Zicherman v. Korean Air Lines Co., 516 U.S. 217,
230 n.4 (1996) (Court states that it “need not consider . . .
whether § 762 [of DOHSA] contradicts the District Court’s
allowance of pain and suffering damages . . .” because Korean
Air Lines had not challenged that ruling in its petition for
certiorari); see also Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 210 n.7 (1996) (Court “assume[s] without
deciding that Moragne also provides a survival action.”).
As demonstrated by the recent grant of certiorari in Dooley
v. Korean Air Lines Co., No. 97-704, the issue of whether it is
permissible for courts to supplement the pecuniary damages
recovery authorized by Congress is now ripe for review by the
Court. First, there is a conflict in the Circuits that is both
acknowledged and of recent vintage. Second, the petition
presents an important and recurring question of admiralty law.
Finally, the result below is at the least in conflict with the
rationale employed—if not the actual holdings—of this Court’s
recent admiralty decisions. and, moreover, raises important
issues on judicial authority to enlarge upon the remedies
provided by Congress.
*Some four years previously, in Offshore Logistics, Inc. v. Tallentire,
477 U.S. 207 (1986), the Court had similarly declined to rule on the closely
related issue of “whether the DOHSA recovery for the beneficiaries’
pecuniary loss may be ‘supplemented’ by a recovery for the decedent’s pain’
and suffering before death under the survival provision of some conceivably
applicable state statute that is intended to apply on the high seas.” /d at
215 n.1.
8
A.. There Is a Square Conflict in the Circuits.
The decision of the Eleventh Circuit in this case conflicts
with two recent decisions of the Ninth and District of Columbia
Circuits. The Eleventh Circuit has held that the recovery of
pecuniary damages allowed by DOHSA may be supplemented
by an award under the general maritime law of nonpecuniary
damages for the decedent’s pain and suffering (App. 30a-3 1a).
Conversely, the Ninth and District of Columbia Circuits held in
1996 and in 1997, respectively, that such a supplemental award
was impermissible. The Ninth Circuit in Saavedra, held that
“because DOHSA does not allow recovery for nonpecuniary
damages, we cannot ‘supplement’ Congress’ remedy,
allowing a_ general maritime survival action for
nonpecuniary damages, including the pre-death pain and
suffering claimed here.” 93 F.3d at 554.
Likewise, the District of Columbia Circuit in Dooley ruled that
DOHSA “explicitly limits the recoverable damages to pecuniary
losses suffered by [the statutory beneficiaries]. These are the
limits of recovery and a court may neither expand nor contract
them.” 117 F.3d at 1483. The court below has rejected these
rulings and reached the diametrically opposite result.
Equally importantly, the decision of the Eleventh Circuit in
this case has resurrected a conflict that had appeared to be
dormant. Although the Eleventh Circuit relied upon decisions
from the First, Third, Fifth, and Eighth Circuits upholding
awards under the general maritime law for the decedent’s pain
and suffering,’ those decisions had been rendered before this
"App. 30a-31a (citing Barbe v. Drummond, 507 F.2d 794, 800 (1st Cir.
1974); Kuntz v. Windjammer “Barefoot” Cruises, Lid., 573 F. Supp. 1277,
1286 (W.D. Pa. 1983), aff'd mem., 738 F.2d 423 (3d Cir.), cert. denied, 469
U.S. 858 (1984): Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d
(continued...)
9
Court decided Miles v. Apex Marine Corp. In Miles, the Court
re-emphasized its holding in Mobil Oil Corp. v. Higginbotham
that “in an ‘area covered by the statute, it would be no more
appropriate to prescribe a different measure of damages than to
prescribe a different statute of limitations, or a different class of
beneficiaries.’” Miles, 498 U.S. at 31 (quoting Higginbotham,
436 U.S. at 625). Until the decision below, it had been possible
to hypothesize that the Circuits that had previously upheld
awards of supplemental damages under the general maritime
law would eventually reconsider their rulings in light of this
Court’s decisions in Miles and Higginbotham. After all, the
Ninth Circuit in Saavedra had recognized that this Court’s
decisions required it to reconsider its prior decisions allowing
awards under DOHSA to be supplemented with a recovery of
nonpecuniary damages under the general maritime law.’ The
decision of the Eleventh Circuit in this case has now dashed any
hope that the conflict in rulings on this issue of federal law
would eventually be resolved without the intervention of this
Court—the conflict is now unquestionably alive.
B. This Case Raises an Important and Recurring Issue
of Admiralty Law.
Now that the decision of the Eleventh Circuit has revived the
conflict in the lower court decisions, one may confidently
7(...continued)
890, 894 (Sth Cir. 1984); Spiller v. Thomas M. Lowe, Jr. & Assocs., Inc.,
466 F.2d 903, 909-10 (8th Cir. 1972)).
"Saavedra, 93 F.3d at 553:
“If [Evich v. Connelly, 759 F.2d 1432 (9th Cir. 1985), and Evich v.
Morris, 819 F.2d 256 (9th Cir.), cert. denied, 484 U.S. 914 (1987)]
were the only relevant precedents, Saavedra’s argument for pre-death ©
pain and suffering damages would be persuasive; however, several
subsequent Supreme Court decisions, culminating with Zicherman,
undoubtedly preclude such relief.”
10
expect: that the issue of whether plaintiffs may recover
supplemental awards for the decedent’s pain and suffering to be
routinely raised in every boating and aviation accident on the
high seas where there is any admissible evidence that the
decedent was conscious for a period prior to death. Such
questions will certainly be raised in mass tort cases occurring on
the high seas where the large number of claims will ensure that
any and all issues relating to available damages will be litigated.
Indeed, the multidistrict judge in the litigation arising out of the
crash of Trans World Airlines Flight 800 has already noted that
the issue of whether damages for pain and suffering are
available in DOHSA cases might be faced in that litigation. /n
re Air Crash off Long Island, 965 F. Supp. 5, 8 (S.D.N.Y. 1997)
(ruling that multidistrict court will rule on common issues of
damages).’
As the awards in this and other cases show, the amounts of
damages potentially available for decedents’ conscious pain and
suffering are significant.’ Hence, the issue of whether pain-
and-suffering damages may be awarded in a case to which
°A bill that would provide that the Death on the High Seas Act should
not apply to aviation disasters passed the House of Representatives in 1997.
H.R. 2005, 105th Cong., Ist Sess (1997). The prospect that this or a similar
bill will pass the Senate is uncertain. Counsel will inform the Court of the
enactment of any legislation pertinent to this case.
The award in this case was $50,000 per decedent (App. 58a). In other
cases, the awards of damages have approached or reached the six-figure
level. See, e.g., Oldham v. Korean Air Lines Co., 127 F.3d 43 (D.C. Cir.
1997) (upholding awards of $100,000 per decedent for pain and suffering
where defendant had failed to preserve issue of whether such damages are
available), Forman v. Korean Air Lines Co., 84 F.3d 446 (D.C. Cir.) (up-
holding award of $120,000 in similar circumstances), cert. denied, 117 S.
Ct. 582 (1996); in re Inflight Explosion, 778 F. Supp. 625 (E.D.N.Y. 1991)
(upholding:a jury’s award of $85,000 for decedent’s pain and suffering),
rev'd on other grounds sub nom. Ospina v. Trans World Airlines, Inc., 975
F.2d 35 (2d Cir. 1992), cert. denied, 507 U.S. 1051 (1993).
“AT
DOHSA applies will continue to be litigated unless the issue is
resolved by this Court.
C. The Decision of the Eleventh Circuit Raises
Important Issues of Judicial Power To Create Extra-
Statutory Remedies .
As shown above, pp. 6-7, the Court has so far declined to
decide the issue of whether the remedy of pecuniary damages
provided by the Death on the High Seas Act may be
supplemented by an award under the general maritime law of
nonpecuniary damages for the decedent’s pain and suffering.
Nonetheless, the provision of any such extra-statutory award is
in conflict with the rationale that this Court employed in both
Mobil Oil Corp. v. Higginbothdm and Miles v.. Apex Marine
Corp. In Higginbotham, the Court ruled that, in a case
governed by DOHSA, the survivors could not recover additional
damages under the general maritime law for the loss of the
decedent’s society. The Court reasoned that it need not
evaluate the policy arguments in favor and against awarding
loss-of-society damages because “Congress has struck the
balance for us. It has limited survivors to recovery of their
pecuniary losses.” 436 U.S. at 623. The Court explained that,
when Congress “does speak directly to a question, the courts are
not free to ‘supplement’ Congress’ answer so throughly that the
Act becomes meaningless.” /d. at 625.
The Court reiterated this conclusion in Miles to hold, inter
alia, that general maritime law could not be used to supplement
the pecuniary damages expressly authorized by the Jones Act,
46 U.S.C. app. § 688, with an award of loss-of-society damages
to the decedent’s family. 498-U.S. at 32-33. The Court further
ruled that, even assuming that general maritime law might
provide a survival action for a seaman’s death, such a survival .
action could not allow recovery of the decedent’s lost future
earnings when the Jones Act did not provide for such a
12
recovery: “Because [the decedent’s} estate cannot recover for
his lost future income under the Jones Act, it cannot t do so under
general maritime law.” /d. at 36.
The Court of Appeals in this case distinguished
Higginbotham on the ground that it dealt with a “wrongful
death” action, while damages for the decedent’s pain-and-
suffering damages would be awarded in a “surviva! action.”
(App. 22a (emphasis in original).) This distinction elevates
form over substance. The reality is that, under the ruling below,
‘damages beyond those authorized by Congress have been
awarded to the decedents’ families.'’ This is precisely the sort
of judicial rewriting of congressionally enacted remedies that
the Court eschewed in Miles and Higginbotham.
Moreover, as just noted, Miles held that it was impermissible
for courts to award supplemental “survival action” damages in
a case under the Jones Act—a statute that does provide for a
limited recovery cf survival action damages.'? A fortiori, it
ought to be impermissible for courts to award supplemental
“survival action” damages in a case under DOHSA—a statute
that does not provide at all for survival action damages.
At the very least, whether correct or not, the decision of the
Eleventh Circuit raises an important issue of the extent to which
''See Dooley, 117 F.3d at 1482 (“In a death on the high seas act case,
there is no relevant difference between a court’s giving a decedent’s
nondependent niece a right of action under general maritime law, which is
clearly impermissible, and allowing the decedent’s estate to sue for the
decedent’s injuries under the general maritime law.”).
">The Jones Act incorporates the Federal Employers’ Liability Act, § 9
of which provides that “[a}ny right of action given by this chapter to a
person suffering injury shall survive to his or her personal representative
.” 45 U.S.C. § 59. This provision does allow recovery of the decedent’s
pre-death pain and suffering. See, e.g., St. Louis, Iron Mt. & S. Ry. v. Craft,
237 U.S. 648 (1915).
13
the federal courts are free to “supplement” the damages
remedies authorized by Congress. The decisions in Higgin-
botham and Miles rested in no small part of the Court’s
cognizance “of the constitutional relationship between the
courts and Congress.” Miles, 498 U.S. at 37. More generally,
outside of the admiralty context, the Court has stated that “*we
start with the assumption’ that it is for Cv \gress, not federal
courts, to articulate the appropriate standards to be applied as a
matter of federal law.” City of Milwaukee v. Illinois, 451 U.S.
304, 317 (1981) (footnote omitted). The Court should grant
certiorari to clarify the extent to which the courts may enlarge
upon the relief that Congress has chosen to grant in the pertinent
_ Statutes. ,
CONCLUSION
For the foregoing reasons, the petition for certiorari should
be granted. :
. Respectfully submitted,
EDGAR A. NEELY, Ill RICHARD M. SHARP* —
RICHARD B. NORTH, JR. FREDERICK C. SCHAFRICK
NELSON MULLINS RILEY & SHEA & GARDNER
SCARBOROUGH, L.L.P. 1800 Massachusetts Ave., N.W.
999 Peachtree Street, N.E. Washington, D.C. 20036
Atlanta, GA 30309 (202) 828-2000
(404) 817-6000
Attorneys for Petitioner
January 22, 1998 , *Counsel of Record
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APPENDIX
.
MASS
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APPENDIX A
UNITED STATES COURT OF APPEALS
~ FOR THE ELEVENTH CIRCUIT
STACY C. GRAY, individually and as Surviving Spouse of Lt.
Douglas G. Gray, and as Personal Representative of Lt.
Douglas G. Gray, deceased,
Plaintiff-Appellee, Cross-Appellant,
¥,
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a division of
Lockheed Corporation,
Defendant-Appellant, Cross-Appellee,
UNITED STATES OF AMERICA,
Defendant.
GRACE M. SCHUMACHER, individually and as Surviving Parent
of Lt. John T. Hartman, and as Personal Representative of
Lt. John Hartman, Deceased,
Plaintiff-Appellee, Cross-Appellant,
Vv.
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a division of
Lockheed Corporation,
Defendant-Appellant, Cross-Appellee,
UNITED STATES OF AMERICA,
Defendant.
2a
WILMA J. JENNINGS, individually, and as Surviving Parent of
Lt. David S. Jennings, and as Personal Representative of Lt.
David S. Jennings, Deceased,
Plaintiff-Appellee, Cross-Appellant,
Vv.
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a division of
Lockheed Corporation,
Defendant-Appellant, Cross-Appellee,
UNITED STATES OF AMERICA,
Defendant.
No. 95-8459
October 24, 1997
Appeals from the United States District Court for the
Northern District of Georgia.
Before HATCHETT, Chief Judge, TIOFLAT, Circuit Judge, and
CLARK, Senior Circuit Judge.
HATCHETT, Chief Judge:
Appellant, Lockheed Aeronautical Systems Company
(Lockheed), appeals from a district court order in favor of the
appellees, Stacy Gray, Grace Schumacher and Wilma Jennings.
The appellees, survivors of three naval aircraft crewmembers
who were killed after ejecting from a _ crashing
Lockheed-manufactured aircraft, filed actions against Lockheed
for wrongful death and survival remedies on strict liability and
negligence claims under the Death on the High Seas Act, 46
U.S.C. App. §§ 761-768 (DOHSA), and general maritime law.
Lockheed invoked the military contractor defense under Boyle
v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510,
1OH-L. Ed. 2d 442 (1988). After a bench trial, the district court
3a
denied that defense, found Lockheed liable, and awarded
damages to the appellees. The district court did not award
prejudgment interest to appellees. We remand on the
determination of prejudgment interest and affirm the judgment
of the district court in all other respects.
BACKGROUND
On October 7, 1989, appellees’ decedents, Lt. Douglas G.
Gray, Lt. John T. Hartman and Lt. (j.g.) David S. Jennings, were
killed and Air Warfare Technician Second Class (AW2) Tracy
Mann was injured when they ejected from a S-3 “Viking” jet
aircraft (S-3) shortly before the aircraft crashed into the sea.'
Lockheed manufactured and sold the S-3 to the United States
Navy in 1975. In the 1960s, the Navy sought proposed designs
for a new antisubmarine warfare aircraft (ASW) to neutralize
the threat that submarines posed. Lockheed submitted its request
for proposal, the Navy accepted, and the S-3 became the Navy’s
new ASW aircraft. Navy engineers and Lockheed employees
worked closely together on many aspects of the S-3’s
development, and the Navy held a series of preliminary design
reviews and critical design reviews. Upon completion of iis
manufacture, the S-3 passed all of the Navy’s acceptance tests,
and Lockheed delivered the S-3 to the Navy.
At the time of their deathé, the decedents were all naval
officers assigned to the U.S.S. John F. Kennedy (the JFK), an
aircraft carrier. On the day of the crash, the decedents boarded
a S-3 on the JFK, which was located 125 miles off the coast of
Virginia, as part of naval flight operations. Gray, the pilot of
the S-3, sat in the left-front seat, and Hartman, the mission
commander, sat in the right-front seat. Mann, the sensor
‘For a fuller explanation of facts, see Gray v. Lockheed Aeronautical
Systems Co., 880 F. Supp. 1559 (N.D. Ga.1995).
4a
operator and the only crash survivor, sat in the left-rear seat, and
Jennings, the tactical coordinator, sat in the right-rear seat.
Prior to flying the S-3, Gray and other crewmembers
properly conducted the required preflight checks. Gray verified
that the S-3’s contro! surfaces (i.e., the ailerons, spoilers, and
elevators) worked properly. Gray executed a “control wipeout,”
which means he moved the pilot’s control stick laterally and
longitudinally through its range of motion. That maneuver
allowed the aircrew and sailors on the JFK’s deck to observe the
movement of the control surfaces. After Gray properly
configured the control surfaces for takeoff, the S-3 was
catapulted from the deck of the carrier in order to give it
sufficient speed to achieve flight.
With both engines at full power and sounding normal, the
S-3’s launch appeared normal; the S-3’s wings were leveled and
it began a shallow climb. After approximately two seconds,
Gray initiated a slow right roll by moving the control stick to the
left. Gray attempted to halt the roll when the S-3 reached 20
degrees of bank angle, the normal bank angle. for clearing a turn.
The S-3 failed to respond to Gray’s movement of the control
stick and continued the right roil. When the S-3 reached 45
degrees of bank angle, Mann heard Gray exclaim “Oh my God!
Eject! Eject! Eject!” Hartman immediately initiated the
sequence that would eject all four occupants from the S-3.
Mann and Jennings, the two rear occupants, ejected first when
the S-3 reached 90 degrees of right bank angle; and Gray and
Hartman ejected when the S-3 was at or beyond 120 degrees of
right bank angle. Their parachutes having scarce time to open,
all three decedents struck the water with great force and suffered
fatal bodily injuries upon impact with the water.
Appellees blame the S-3’s crash in part on design defects in
_ the S-3’s aileron servo (the servo). Part of the S-3’s flight
control system, the servo is contained in the S-3’s fuselage and
Sa
it links the pilot with the ailerons. An aileron is “a movable part
of an airplane wing or a movable airfoil external to the wing at
the trailing edge for imparting a rolling motion and thus
providing lateral control.” Webster's New Collegiate
Dictionary 24 (1979). On the S-3, a cable connects the pilot’s
control stick to the servo’s input arm, and a rod from a ram
mounted inside the servo passes through the S- . Ss wings and
attaches to the ailerons.
The S-3 has two jet engines that drive separate hydraulic
pumps. The two hydraulic pumps each power a hydraulic
system, creating 3000 pounds per square inch (psi) of hydraulic
pressure in each system. Ordinarily, the servo functions in the
“powered” mode using hydraulic power. In this mode, the pilot
has no mechanical link with the ailerons. Instead, the pilot’s
movement of the control stick triggers a sequence of functions
causing hydraulic pressure in the servo to raise or lower the
ailerons. If a hydraulic failure occurs, the servo should
automatically switch to “manual” mode, a process known as the
Emergency Flight Control System (EFCS). A latch and pin
located inside the servo are key to the operation of the EFCS.
“When the hydraulic pressure in both systems drops below 800
psi, a shutoff valve at the bottom of the servo should ‘trip,’
cutting off all hydraulic pressure in the servo. The absence of
hydraulic pressure in the servo allows the springs to expand;
this expansion should move the pin into the latch, an event
called ‘latch-up.’” Gray, 880 F. Supp. at 1563. Once EFCS
latch-up occurs, the pilot has a direct mechanical link to the
ailerons but has to use more effort to move the control stick.
Although Lockheed designed, manufactured, and sold the
S-3 to the Navy, Lockheed subcontracted the manufacturing of
the S-3’s servo to the Bertea Corporation (Bertea), which is now
a subsidiary of the Parker-Hannifin Corporation. Bertea also
developed the acceptance test procedure (ATP) for the servo.
An ATP tests whether a product performs in accordance with its
6a
design specifications. The district court found that the ATP
Bertea developed for the servo had several shortcomings.
Although very important, the ATP did not measure the speed of
the EFCS latch-up; nor did the ATP test the servo’s operation
while subjected to simulated flight demands.
In the spring of 1990, the Navy recovered the crashed S-3.
Post-crash testing of the servo revealed some malfunctions and
deviations from design specifications. First, Douglas Crawford,
a Lockheed engineer, found when he “deviated from the ATP
and moved the servo’s input arm to stimulate commands from
the control stick, the servo’s shutoff valve tripped at 1400 psi,
not the specified 800 psi.” Gray, 880 F. Supp. at 1564. “The
servo’s shutoff valve ‘sensed’ 800 psi, even though the actual
pressure was 1400 psi.” Gray, 880 F. Supp. at 1564. Second,
Crawford observed a chip on the pin involved in the EFCS
latch-up process, and concluded “the chip showed the pin had
been fluctuating in and out of the latch due to hydraulic pressure
fluctuation in the servo.” Gray, 880 F. Supp. at 1564. Third,
although the specifications for the pin and latch both required a
measurement of .3750, plus or minus .0001, the components
here failed to meet that measurement; the pin measured .3749
but the latch measured .3740. Jesse Dooman, one of the
appellees’ expert witnesses, testified, and the district court
found, “that the out-of-tolerance latch would adversely affect
the speed of latch-up.” Gray, 880 F. Supp. at 1564.
The district court ruled the following sequence of events
probably led to the crash of the S-3:
All systems on the S-3 were working properly when it was
hooked to the catapult. However, as the S-3 traveled down
the catapult, one of its hydraulic systems suffered a complete
failure. Contrary to expectations, pressure in the remaining
hydraulic system dropped because of the added demands for
hydraulic power it had to satisfy with the loss of the other
Ta
system. Lt. Gray’s initiation of the right roll, which
necessarily moved the servo’s input arm, caused the servo to
attempt to transition into EFCS at 1400 psi. However, the
low, fluctuating hydraulic pressure, coupled with the shutoff
valve’s operation at a higher-than-specified pressure, caused
the servo to chatter at millisecond intervals between the
powered and manual modes. The friction in the EFCS
mechanism and a mis-sized latch impeded the servo’s ability
to transition swiftly into EFCS. The chattering caused (1)
the freezing of the ram in the right roll position (with an
attending freezing of the aileron in the same position) and
(2) the condition known as “free stick,” in which Lt. Gray’s
movement of the control stick did not translate into any
movement of the control surfaces. The S-3 thus continued
the smooth right roll noted above until impact with the
ocean.
Gray, 880 F. Supp. at 1566.
CONTENTIONS
_ Lockheed contends that the military contractor defense
barred appellees’ claim for the servo’s alleged defective design.
According to Lockheed, the district court misapplied the
standards for application of the defense; acted unreasonably in
requiring Lockheed to produce evidence that the Navy reviewed
and approved specific engineering drawings of the servo; and
incorrectly rejected as insufficient the narrative descriptions that
Lockheed introduced of the servo. Lockheed maintains that the
Navy exercised final responsibility for the S-3’s entire design;
closely reviewed and approved the design specifications of the
servo; and found that the servo complied with its relevant
specifications. Lockheed further contends that the district court
erred in finding Lockheed strictly liable for a defectively
designed servo. In Lockheed’s estimation, the district court
adopted a theory of causation that Navy experts specifically
8a
rejected; made insufficient findings; and failed to require
appellees to prove a reasonable alternative design for the servo
that would have prevented the accident. Lockheed argues that
it cannot be held liable in negligence because it neither
manufactured nor installed the replacement servo in the crashed
S-3. The Navy, Lockheed also adds, approved the ATP for the
servo.
Lockheed also contends that DOHSA limits recovery to
pecuniary loss and bars the award of pain and suffering damages
in this case. According to Lockheed, the Supreme Court also
has not clearly recognized a “general maritime right of
survival.” Additionally, Lockheed contends that the district
court failed to provide sufficient explanation for the damages it
awarded and to find three of the critical components of loss of
support—trates of growth, consumption, and discount. Finally,
Lockheed asserts that the determination of prejudgment interest
should be remanded to the district court 1s the district court may
have denied prejudgment interest becau.” the appellees filed an
untimely request.
The appellees contend that Lockheed did not satisfy the |
conditions for the military contractor defense. According to the
appellees, Lockheed’s bid to win the S-3 contract from the Navy
~ had no detailed design specifications for the servo; Lockheed
produced no detailed specifications of the servo; and the
narrative specifications Lockheed did introduce were
inadequate. The appellees also argue that Lockheed had final
approval over the servo’s design, and the Navy’s post-contract
review did not constitute approval of that design. Moreover,
appellees contend that the Navy’s continuing purchase of the
servo provides no proof that the servo met reasonably precise
specifications, and further contend that the servo did not
conform to the Navy’s general specifications.
9a
Appetiees additionally contend that the district court applied
the correct theory of causation and found Lockheed strictly
liable. Requiring a plaintiff to produce evidence of an
alternative design, appellees argue, places an undue burden on
a plaintiff, where the original product fails to function because
of a design defect. Appellees assert the record contains
abundant evidence of alternative designs for the servo.
Appellees also contend that Lockheed’s failure to ensure an
adequate ATP for the servo constituted negligence., Appellees
note that Lockheed produced no evidence that the Navy
approved or controlled the ATP, and further observe that the
only competent evidence showed that Lockheed and Bertea
controlled the ATP.
Appellees also maintain that DOHSA does not preclude the
award of pain and suffering damages under general maritime
_ Survival action claims, and that the Supreme Court has never
} precluded a general maritime survival recovery. In addition,
appellees argue that the district court sufficiently explained its
basis for awarding damages; had no duty to make specific
findings regarding the rates used to calculate growth,
consumption or discount; and considered the appropriate
factors, i.e., lifetime earnings, taxes, personal consumption, and
present value, to determine pecuniary loss. Appellees also
cross-appeal contending that the district court erred in failing to
award prejudgment interest.
ISSUES
Lockheed raises the following issues on appeal: (1) whether
the district court erred in rejecting Lockheed’s military defense
contractor defense; (2) whether the district court erred in finding
Lockheed strictly liable for a design defect; (3) whether the
district court erred in finding Lockheed negligent for an
inadequate “acceptance test procedure”; and (4) whether the
district court erred in its award of damages. Appellees raise one
LON oy SER ped es hea Ree
10a
issue On cross-appeal: whether the district court erred in failing
to award prejudgment interest.
DISCUSSION
A. Standard of Review
We review the district court’s conclusions of law de novo
but do not disturb findings of fact unless they are clearly
erroneous. Godfrey v. BellSouth Telecommunications, Inc., 89
F.3d 755, 757 (11th Cir. 1996).
B. The Military Contractor Defense
Appellees argue that a design defect in the servo, a part of
the S-3’s flight control system, caused the aircraft to crash.
Although Lockheed denied liability, Lockheed invoked the
military contractor defense for immunity. In Boyle v. United
Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 10} L. Ed.
2d 442 (1988), the Supreme Court held that, under certain
circumstances, government contractors are shielded from state
tort liability for equipment manufactured for our nation’s
military. This “defense derives from the principle that where a
contractor acts under the authority and direction of the United
States, it shares the sovereign immunity” that the government
enjoys. Harduvel v. General Dynamics Corp., 878 F.2d 1311,
1316 (11th Cir.1989) (citation omitted), cert. denied, 494 U.S.
1030, 110 S. Ct. 1479, 108 L. Ed. 2d 615 (1990). The
displacement of liability occurs “only where . . . a ‘significant
conflict’ exists between an identifiable ‘federal policy or interest
and the [operation] of state law’ . . . or the application of state
law would ‘frustrate specific objectives’ of federal legislation.”
Boyle, 487 U.S. at 507, 108 S. Ct. at 2516 (citation omitted).
Stripped to its essentials, the military contractor defense is
available only when the defendant demonstrates with respect to
its design and manufacturing decisions that “the government
lla
made me do it.” Jn re Joint Eastern and Southern District New
York Asbestos Litigation, 897 F.2d 626, 632 (2d Cir.1990).
The Supreme Court established a three-part test in Boyle to
determine when the military contractor defense applies. A
contractor seeking immunity from liability for design defects in
military equ’ pment must prove that:
(1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States
about the dangers in the use of the equipment that were
known to the supplier but not to the United States.
Boyle, 487 U.S. at 512, 108 S. Ct. at 2518. The first two
conditions of the Boyle test “assure that the design feature in
question was considered by a government officer, and not
merely by the contractor itself.” 487 U.S. at 512, 108 S. Ct. at
2518. The third condition serves to eliminate any incentive that
the military contractor defense might create for contractors to
_ withhold knowledge of risks. Boyle, 487 U.S. at 512, 108 S. Ct.
at 2519.
1. First Boyle condition
To establish the first Boyle cor dition, the contractor must
prove that the military approved “reasonably precise
specifications” for the equipment. This condition requires the
existence of two factors: reasonably precise specifications and
government approval of them. The Fifth Circuit in Trevino v.
General Dynamics Corp., 865 F.2d 1474 (Sth Cir.), cert. denied,
493 U.S. 935, 110 S. Ct. 327, 107 L. Ed. 2d 317 (1989), defined
“reasonably precise specifications” as
[t]he requirement that the specification be precise means that
the discretion over significant details and all critical design -
choices will be exercised by the government. If the
government approved imprecise or general guidelines, then
12a
discretion over important design choices would be left to the
government contractor.
865 F.2d at 1481. The contractor must show that the Navy
“actually participated in discretionary design decisions, either by
designing [the servo] itself or approving specifications” that the
contractor prepared. Harduvel, 878 F.2d at 1316.
In reviewing the record, several considerations inform our
analysis. Where the government merely approves imprecise or
general guidelines, the contractor retains the discretion over the
important design decision and enjoys no immunity against
liability based on the Boyle defense. Trevino, 865 F.2d at 1481.
A finding that the military approved the specifications requires
more than a tacit approval: the approval must be meaningful,
not a mere formality. Oliver v. Oshkosh Truck Corp., 96 F.3d
992 (7th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1246,
137 L. Ed. 2d 328 (1997); Trevino, 865 F.2d at 1481 (approval
involves more than a “rubber stamp”). In Harduvel, this court
explained that a contractor may satisfy the first condition where .
the design of the product resulted from a “‘continuous back and
forth’” between the military and the contractor. Harduvel, 878
F.2d at 1320 (citation omitted).
After careful review of the record, we conclude that the
district court did not err in ruling that Lockheed failed to satisfy
the first Boyle condition. Lockheed presented no evidence that
the Navy approved reasonably precise specifications for the
servo. The district court requested a copy of the servo’s
engineering drawings, and Lockheed only produced a general
narrative description of the servo’s specifications entitled
“Equipment Specifications—Power Servos, Primary Flight
Controls.”. Lockheed had prepared this narrative before the
Navy's procurement process for S-3 and incorporated it into its
bid to the Navy for the S-3’s contract. The document simply
sets forth the general requirements for the aileron servo, i.e.,
13a
automatic reversion if both hydraulic systems fail, and servos
with manual reversion on ailerons. The Fourth Circuit
explained in Kleemann v. McDonnell Douglas Corp., 890 F.2d
698 (4th Cir.1989), cert. denied, 495 U.S. 953, 110 S. Ct. 2219,
109 L. Ed. 2d 545 (1990), that
military hardware does not suddenly spring into being from
initial design and procurement specifications, but evolves
. through drawings, blueprints and mockups agreed upon by
the parties. See Harduvel, 878 F.2d at 1320-21; Ramey, 874
F.2d at 948 n. 4-5. The ultimate design of the product is
determined not only by the original procurement and
contract specifications, but also by specific, quantitative
engineering analysis developed during the actual production
process.
Kleemann, 890 F.2d at 702. We conclude that although the
narrayjve may embody some aspects of the servo’s
specifications, it does not comprise the precise design
specifications that the Boyle test requires. We also conclude
that even though Lockheed subcontracted the responsibility for
manufacturing the servo to Bertea, Lockheed retained ultimate
discretion over design and testing procedures for the servo.
2. Second Boyle condition
To demonstrate the second Boyle condition, a contractor
must show that the equipment at issue conformed to precise,
government-approved specifications. While the record lacks
evidence of any reasonably precise specifications of the servo’s
design, this court assumes nonetheless that the Navy approved
the narrative description that Lockheed alleges as the servo’s
specifications. In Harduvel, this court explained: “To say that
a product failed to conform to specifications is just another way
of saying that it was defectively manufactured.” 878 F.2d at
1321. Nonconformance, however, means more than that the
ultimate design feature does not achieve its intended goal. The
l4a
alleged defect must exist independently of the design itself; it
must result from a deviation from the required military
specifications. See Kleemann, 890 F.2d at 703.
A contractor may show conformity through evidence that the
military was “present and actively involved throughout the
design, review, development and testing of the [equipment at
issue].” Jn re Air Disaster at Ramstein Air Base, Germany on
8/29/90, 81 F.3d 570; 575 (Sth Cir.), amended on denial of
reh'g, 88 F.3d 340 (5th Cir.), cert. denied, —U.S.—, 117 S. Ct.
583, 136 L. Ed. 24 $13 (1996).In Kleemann, the Fourth Circuit
expounded “where the procurement process involves this kind =
of continuous exchange between the contractor and the
governed, the process itself becomes persuasive evidence of
_the product conformity to precise specifications.” 890 F.2d at
_— 702. Additionally, such evidence tends to show that the
government retained discretion and the contractor had no
freedom to deviate from the government’s specifications.
Trevino, 865 F.2d at 1481.
Even if this court relies on the narrative description as a
specification, the record does not support Lockheed’s
contention that it satisfied the second Boyle condition. The
basic design of the servo called for an automatic manual
reversion system or EFCS that operated without a hazardous
lag. In the event of a hydraulic failure, the EFCS causes the
flight controls to instantly revert to a manual operation mode
enabling the pilot to control and safely land the aircraft. The
servo at issue did not meet those specifications. The district
court found that chattering in the servo demonstrated that it
suffered from a hazardous lag and that the pilot’s control stick
had to be within 60 percent of its centered position in order for
the EFCS latch-up mechanism to occur. Gray, 880 F. Supp. at
1567. Those defective and unspecified conditions affected the
operation of the automatic manual reversion system.
15a
re
Additional evidence showed. defects in two key components
that the servo uses when it goes into the manual reversion mode. _
The pin and latch which link the pilot’s control stick with the
ailerons did not meet their specified dimensions of .3750, plus
or minus .0001; the pin measured .3749, but the latch measured
.3740.? The district court found that the out-of-tolerance latch
could adversely affect the speed of the latch-up; and that
“friction in the EFCS mechanism and a mis-sized latch impeded
the servo’s ability to transition swiftly into EFCS.” Gray, 880
F. Supp. at 1566. Moreover, the shutoff valve in the servo
__ operated at a higher- than-specified pressure; the servo attempted
eae ree ee of the specified —
_ 800 psi. 7
We conclude that Lockheed failed to satisfy the second
condition for the application of the military contractor defense.
The above-described defects clearly demonstrate that the servo
did not conform to its specifications. See Harduvel, 878 F.2d
at 1317 (No federal interest are implicated “where a defect is
merely an instance of shoddy workmanship ... .”). The
shortcomings with the EFCS and the positioning of the control
stick demonstrate that the servo failed to achieve its most
important design specification, i.e. having an automatic manual
reversion system that operated without a iazardous lag. The
fact that the Navy continuously used the S-3 and actually
replaced the servo in the crashed S-3 does not prove that the
servo conformed to precise, Navy-approved specifications.
eho
ates ,
*The district court found the latch measured .3746 and the pin measured .
.57487. This court finds that those measurements were of the elevator
servo, not the aileron servo: the elevator servo was also found to be out of
tolerance.
16a
3. Third Boyle condition
A contractor may satisfy the third Boyle condition through
.. evidence that it warned the government of all the dangers
known to it, but not to the government. Having denied the
Boyle defense on the first two conditions, the district court did
not address the third condition. We nonetheless consider this
element and conclude that Lockheed failed to warn the Navy
and to ascertain the nature of the flight control problems. The
operations manual that Lockheed prepared for the S-3 does not
warn pilots about how critical the positioning of the control
stick is to effect an emergency latch-up. Without that
information, Gray did not realize that the control stick had to be
within 60 degrees of the centered position for the EFCS
mechanism to occur. Lockheed should have explained that
under certain circumstances, the pilot must act affirmatively
moving the control stick within 60 degrees of its centered
position to engage the automatic manual reversion system.
Furthermore, the Navy’s involvement in the development of the
S-3 does not satisfy the threshold showing of adequate warning
for that aircraft’s servo. See Kleemann, 890 F.2d at 701.
C. Strict Liability Claims
We next consider whether the district court erred in finding
Lockheed strictly liable for a defectively designed aircraft. A
plaintiff may bring a strict liability claim under DOHSA, which
sets forth a general standard for imposing liability. See, e.g.,
Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (Sth
Cir.1984); Lindsay v. McDonnell Douglas Aircraft Corp. , 460
F.2d 631, 635 (8th Cir.1972). We follow the Restatement
(Second) of Torts § 402A for the generally accepted principles
of tort law. Section 402A outlines the elements of a products
lability claim:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user . . . is subject to liability
17a
for physical harm thereby caused to the ultimate user . . . if
(a) the seller is engaged in the business of selling such a
product, and (b) it is expected to and does reach the user. . .
without substantial change in the condition in which it is
sold.
(2) The rule stated in Subsection (1) applies although (a) the |
seller has exercised all possible care in the preparation and
sale of his product, and (b) the user . . . has not bought the
product from or entered into any contractual relation with
the seller.
Restatement (Second) of Torts § 402A (1965).
Upon review of the record, we hold that the district court
correctly found Lockheed strictly liable for the defective
condition of the S-3 at issue. Although the S-3’s design
specifications called for an automatic reversion system, the
EFCS of the servo at issue was not completely automatic.
Under certain circumstances the servo would chatter between
the powered and manual modes because of excessive friction in
the EFCS mechanism. The chattering in the crashed S-3’s servo
froze the ram in the right roll position and caused the free-stick
condition. The servo’s design did not accommodate the
free-stick phenomenon. The district court ruled that “the
catastrophic effect of the free stick condition Lt. Gray
consequently faced showed that the defective condition was
unreasonably dangerous.” Gray, 880 F. Supp. at 1568. Because
the record supports the district court’s order, we conclude that
the S-3 at issue had a defective condition because of its servo;
the defective servo made the S-3 unreasonably dangerous; the
defect existed independently of the manufacturing defect; and
the defective condition of the S-3 caused the death of the
18a ;
appellees’ decedents.’ Moreover, the record contains incidents
where other pilots experienced similar uncommanded rolls or
free-stick, and subsequent investigations considered failures
with the servo as a possible explanation.
D. Negligence Claims
We now consider whether the district court erred in finding
Lockheed liable for negligence because of an inadequate ATP.
Concepts of products liability, based on negligence, are
recognized as part of general maritime law. East River
Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858,
865-866, 106 S. Ct. 2295, 2299-2300, 90 L. Ed. 2d 865 (1986).
This court relies on the standard of negligence set forth in the
Restatement (Second) of Torts §§ 282-283 (1965). Section 282
provides: “[N]egligence is conduct which falls below the
standard established by law for the protection of others against
unreasonable risk of harm. It does not include conduct
recklessly disregardful of an interest in others.” Section 283
provides: “Unless the actor is a child, the standard of conduct
to which [the actor] must conform to avoid being negligent is
that of a reasonable [person] under like circumstances.”
Restatement (Second) of Torts §§ 282-283 (1965). These
sections essentially define negligence as an act or omission that
creates an unreasonable risk of harm; or conduct that falls below
what a reasonable person in similar circumstances would have
done.
After careful review of the facts and circumstances, we are
convinced that the district court properly found Lockheed liable
for negligence. Under the negligence standard, Lockheed had
*The manufacturing defect along with the design defect may have jointly
aggravated the condition of the servo. The district court found that “friction
im the EFCS mechanism and [the] mis-sized latch impeded the servo’s
ability to transition the swiftly into the EFCS.” Gray, 880 F. Supp. at 1566.
19a
a duty to construct an adequate testing procedure for the servo.
The evidence shows, however, that Lockheed developed an
inadequate ATP and breached its duty. The ATP Lockheed
used had no provision for testing the speed of the latch-up
mechanism even though Lockheed knew or should have known
a transition lag between the powered and manual modes would
be hazardous. The district court also found if the ATP had
simulated flight demands, Lockheed would have “discovered
the friction the EFCS mechanism generated, the tripping of the
shutoff valve at higher-than-specified pressures . . . and the fact
that the control stick had to be within 60 percent of its centered
position for the latch-up to occur.” Gray, 880 F. Supp. at 1569.
Accordingly, we conclude that the servo was a unique and
untested flight control component which Lockheed developed
specifically for the S-3. Lockheed’s failure to develop an
adequate ATP for the servo created an unreasonable risk of
harm, resulting in the crash of the S-3 at issue and the death of
the appeliees’ decedents. A stande-d and adequate ATP would
have revealed the servo’s mis-sized latch and pin regardless of
its manufacturer.
E. Damages
Having found that the district court properly held Lockheed
liable for appellees’ wrongful death and survival claims, we
now turn to the issue of damages. The district court awarded
two types: wrongful death damages and survival damages.
Recognizing DOHSA as the exclusive basis for appellees’
wrongful death claims, the district court ruled appellees could
recover damages for loss of support, loss of services, and
funeral expenses. After finding the appellees had viable
survival action claims under general maritime law, the district
court ruled the appellees could recover damages for pain and
suffering on the survival action claims. The district court
awarded the following damages: loss of support to Gray’s wife
($1.5 million), to Hartman's mother and wife ($1.2 million),
20a
and to Jennings’s mother ($600,000); loss of services to Gray’s
wife ($300,000), to Hartman’s mother and wife ($300,000), and
to Jennings’s mother ($175,000); pain and suffering to each
appellee as the personal representative of her decedent’s estate
($50,000 each).
Lockheed challenges the district court’s ruling on damages
on two grounds: (1) the availability of pain and suffering
damages for appellees’ survival action claims and (2) the
computation of damages. First, we consider whether the district
court erred in awarding pain and suffering damages for
appellees’ survival action claims under general maritime law.
1. Availability of pain and suffering damages
Lockheed relies on the Supreme Court’s decisions in Mobil
Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct. 2010, 56 L.
Ed. 2d 581 (1978), and Zicherman v. Korean Air Lines Co.,
Lid., 516 U.S. 217, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996), as _
well as recent decisions in the Ninth and District of Columbia
Circuits to support the proposition that general maritime law
survival action claims and/or pain and suffering damages are
unavailable when a death occurs on the high seas. See Saavedra
v. Korean Air Lines Co., Ltd., 93 F.3d 547, 554 (9th Cir.)
(“because DOHSA does not allow recovery for nonpecuniary
damages, we cannot ‘supplement’ Congress’ remedy, allowing
a general maritime survival action for nonpecuniary damages,
including . . . pre-death pain and suffering”), cert. denied, —
U.S. —, 117 S. Ct. 584, 136 L. Ed. 2d 514 (1996); Dooley v.
Korean Air Lines Co., Ltd. (In re Korean Air Lines Disaster of
September 1, 1983), 117 F.3d 1477, 1481-83 (D.C.Cir.1997)
(same).
We find these cases either inapposite or unpersuasive. With
respect to the Supreme Court’s decisions, we observe that the
Court's recent Zicherman decision expressly leaves open the
question of whether DOHSA forecloses a non-DOHSA based
21a
pain and suffering award. See Zicherman, — U.S. at — n. 4,
116 S. Ct. at 636 n. 4;* see also Offshore Logistics, Inc. v.
“Zicherman resolved a dispute over whether a plaintiff suing under the
Warsaw Convention may recover loss-of-society damages for the death of
a relative in a plane crash occurring on the high seas. The Court held that the
compensable harm in such a lawsuit is determined with reference to
’ DOHSA, and that DOHSA’s limitation of recovery to pecuniary damages
barred recovery of loss-of-society damages even if such damages would be
recoverable under general maritime law or state law. — U.S. at — - —, 116
S. Ct. at 632-37. Specifically, the Court stated that “where DOHSA applies,
neither state law nor general maritime law can provide a basis for recovery
of loss-of-society damages.” —-U.S. at —, 116 S. Ct. at 636 (internal
citations omitted) (emphasis added). The plain language of DOHSA covers
damages that a wrongful death causes to a decedent’s wife, husband, parent,
child or dependent relative. See 46 U.S.C.App. §§ 761 and 762. The
loss-of-society damages sought in Zicherman were intended to compensate
Zicherman’s sister and mother for the loss of Zicherman’s “love, affection
and companionship” arising from Zicherman’s wrongful death. Zicherman,
— U.S. at—, 116 S. Ct. at 631. As a result, the damages sought would have
awarded Zicherman’s sister and mother—both designated DOHSA
beneficiaries—relief which the plain language-of DOHSA precluded them
from receiving.
The case at bar does not involve an allegation of error with respect to
the award of loss-of-society damages to designated DOHSA beneficiaries.
Rather, it involves an alleged error in awarding pain and suffering damages
to the personal representatives of the estates of the decedents under a
survival action, that is to say, an award to beneficiaries not identified in
DOHSA under a recognized cause of action that is wholly distinct from a
wrongful death action. See Sea-Land Services v. Gaudet, 414 U.S. 573, 575
n. 2, 94 S. Ct. 806, 810 n. 2, 39 L. Ed. 2d 9 (1974) (explaining the
distinction between wrongful death actions and survival actions); see also
Magruder & Graut, Wrongful Death Within the Admiralty Jurisdiction, 35
Yale L.J. 395, 405 n. 46 (1926) (indicating that a survival action permits the
personal representative of a decedent te-recover for the cause of action
accruing to the decedent in his lifetime for an invasion of his right to
personal security, while a wrongful death action creates a new right of action
in favor of the next of kin based, “not upon the initial invasion of the
decedent's right to personal security, but rather on the wrongful act of
(continued...)
. 22a
Tallentire, 477 U.S. 207, 215 n. 1, 106 S. Ct. 2485, 2490 n. 1,
91 L. Ed. 2d 174 (1986) (declining to address the question of
whether a DOHSA recovery can be supplemented with pain and
suffering recovery under an applicable state law survival action
statute). Likewise in Higginbotham, the Supreme Court
recognized DOHSA as providing the sole remedy in actions for
wrongful death occurring on the high seas, but did not directly
address the question, of whether a survival action based on
general maritime law could be maintained in conjunction with
a DOHSA wrongful death action. See Azzopardi v. Ocean
Drilling & Exploration Co., 742 F.2d 890, 893-94 (Sth
Cir.1984). “Given this, Higginbotham cannot be read as
authority for the proposition that DOHSA precludes a survival
action in the case of death occurring on the high seas.”
Azzopardi, 742 F.2d at 894. Indeed, dicta from at least one
other Supreme Court decision affirmatively suggests that
DOHSA does not eliminate the availability of an otherwise
proper survival action when a death occurs on the high seas.
See Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4,
78 S. Ct. 394, 397 n. 4, 2 L. Ed. 2d 382 (1958) (“Where death
‘(...continued)
bringing him in contact with a fatal force”).
We recognize that the net effect of an award of survival action damages
to the personal representatives of the estates in this case may ultimately
result in additional payments to some designated DOHSA beneficiaries, but
such payments, if they occur at all, will only devolve to those beneficiaries
through the decedents’ estates, and will be for damages of a kind not
contemplated under DOHSA. This last distinction--regarding the kind of
. damages-is a subtle one, but highly significant when assessing the relevance
vel non of Zicherman here. Zicherman, in our view, stands for the
proposition that DOHSA governs the award of all damages flowing from
wrongful death—i.e., the losses to beneficiaries of a decedent flowing from
the decedent’s demise. Zicherman does not, in our view, stand for the
proposition that DOHSA also operates to bar the award of damages flowing
from the losses which the decedent personally experienced prior to death.
23a
occurs beyond a marine league from state shores, the Death on
the High Seas Act provides a remedy for wrongful death.
Presumably any claims, based on unseaworthiness, for damages
accrued prior to the decedent’s death would survive, at least if
a pertinent state statute is effective to bring about a survival of
the seaman’s right.”) (emphasis added) (internal citations
omitted).
The foregoing observations convince us and our colleagues
in the Fifth Circuit that the Supreme Court has simply not
expressed a clear opinion on the matter at issue here. The Ninth
and District of Columbia Circuits, however, have viewed the
matter differently. In Saavedra v. Korean Air Lines Co., Lid.,
the Ninth Circuit considered the question of the. damages
available to the personal representative for the estates of three
passengers of a Korean airliner that a Soviet military aircraft
shot down over the Sea of Japan. The personal representative
argued, in part, that a decedent’s estate can bring a survival
action claim for pre-death pain and suffering under general
maritime law, even though that cause of action is unavailable
under DOHSA. Saavedra, 93 F.3d at 553. Relying heavily on
the Supreme Court’s DOHSA decisions in Higginbotham and
Zicherman, the Ninth Circuit rejected the personal
representative’s argument. Specifically, the Ninth Circuit read
the Supreme Court’s decisions to hold that DOHSA imposes a
complete legislatively designed . -bar on the recovery of
nonpecuniary damages, which the courts are not free to
circumvent via the authorization of a general maritime survival
action claim for nonpecuniary damages. 93 F.3d at 553-54.
The District of Columbia Circuit followed and elaborated
upon the rationale of Saavedra in Dooley v. Korean Air Lines
Co., Ltd., a case which also arose from the Sea of Japan Korean
airliner tragedy. In Dooley. the District of Columbia Circuit —
concluded that DOHSA reflects a conscious congressional
choice to limit benefits and remedies in cases arising on the high
24a
seas, and that those limits eliminate the discretion of courts to
recognize a survival remedy under general maritime law. 117
F.3d at 1481-83. As evidence of this conscious congressional
intent, the Dooley court first noted that the Jones Act—which
was enacted at almost the same time as DOHSA—contains a
survival remedy, while DOHSA does not. 117 F.3d at 1481-82.
According to the Dooley court, the inclusion of a survival
remedy in the Jones Act but not in DOHSA “scarcely seems
inadvertent.” 117 F.3d at 1482. The Dooley court also, cited
language from Higginbotham where the Supreme Court
allegedly indicated that DOHSA “expressed a congressional
“judgment on such issues as . . . survival, and damages.””
Dooley, 117 F.3d at 1482 (citing Higginbotham, 436 US. at
625, 98 S. Ct. at 2015).
We agree with the Saavedra and Dooley courts that the
availability of a general maritime law survival remedy turns on
Congress’s intent in passing DOHSA. See Dooley, 117 F.3d at
1481 (“Judge-made general maritime law may not override .
congressional judgments, however ancient those judgments may
happen to be.”). In this instance, though, we believe the
Saavedra and Dooley courts misread Congress’s jntent
regarding the preclusive scope of DOHSA.
Our analysis of Congress’s intent, of course, must begin with
the plain language of DOHSA. See United States v. Oboh, 92
F.3d 1082, 1084-85 (11th Cir.1996) (en banc) (statutory
analysis begins with plain language and if the language is
unambiguous, the first step of analysis is also the last), cert.
denied, — U.S. —, 117 S. Ct. 1257, 137 L. Ed. 2d 337, and
cert. denied, — U.S.—, 117 S. Ct. 1258, — L. Ed. 2d —
(1997). After searching the plain language of DOHSA we, like
other courts, find that Congress made no express reference to -
the words “survival,” “survival remedy” or “survival action”
anywhere in the Act. See 46 U.S.C.App. §§ 761-768; see also
Kuntz v. Windjammer “Barefoot” Cruises, Lid., 573 F. Supp.
25a
1277, 1285 (W.D.Pa.1983), aff'd, 738 F.2d 423 (3d Cir.), cert.
denied, 469 U.S. 858, 105 S. Ct. 188, 83 L. Ed. 2d 121 (1984);
Azzopardi, 742 F.2d at 894.
We are also unpersuaded that Congress intended to make an
indirect statement precluding the recognition of a general
maritime law survival action remedy via section 765 of
DOHSA. But see Dooley, 117 F.3d at 1482 (suggesting that
section 765 created “a very limited survival provision” which
constitutes an “expression of legislative judgment on the extent
to which survival actions are to be permitted”). Section 765
provides as follows:
If a person die [sic] as the result of such wrongful act,
neglect, or default as is mentioned in section 761 of this title
during the pendency in a court of admiralty of the United
States of a suit to recover damages for personal injuries in
respect of such act, neglect, or default, the personal
representative of the decedent may be substituted as a party
and the suit may proceed as a suit under this chapter for the
recovery of the compensation provided in section 762 of this
title.
46 U.S.C.App. § 765 (emphasis added). In our view, this
provision is not a survival action provision at all, a conclusion
which the Supreme Court appears to have endorsed in Sea-Land
Services v. Gaudet, 414 U.S. 573, 575 n. 2, 94 S. Ct. 806, 810
n. 2, 39 L. Ed. 2d 9 (1974) (“The Federal Employers’ Liability
Act [FELA] and the Jones Act, but not the Death on the High
Seas Act contain survival provisions.”) (internal citations
omitted); see also Azzopardi, 742 F.2d at 893 (“DOHSA is a
wrongful death statute and contains no survival provision.”).
Rather, section 765 is best viewed as a_ permissive
non-abatement/conversion provision which, under the Act as |
originally drafted, provided a useful mechanism for preserving
a wrongful death action beyond the original Act’s statute of
26a
limitations when the decedent did not die from the anter edent
wrongful act within the limitations period. See Hughes, Death
Actions in. Admiralty, 31 Yale LJ. 115, 126 (1921)
(commenting on how the Act allows a badly injured party to
preserve his DOHSA rights if he initiates a personal injury
lawsuit during his life). While section 765 also effectively
operated to abrogate the old common law rule that a cause of
action necessarily died with the decedent, nothing in section 765
indicates that the provision was intended to require a decedent’s
personal representative to abandon any survival cause of action
that may have existed via statute or general maritime law in
favor of a wrongful death remedy for a designated DOHSA
beneficiary. See Bodden v. American Offshore, Inc., 681 F.2d
319, 331-332 (Sth Cir.1982) (discussing intent of section 765
and other DOHSA provisions and concluding that “a careful
reading and rereading of these sections convinces us that
Congress did not address or intend to address the issue of two
causes of action”); Maraist, Developments in the Law,
1983-1984: Admiralty, 45 La, L.Rev. 179, 196 (1984); cf
Kuntz, 573 F. Supp. at 1285 (“intent of [section 765] is to grant
the beneficiaries the right to continue a decedent’s original suit
as a wrongful death action under DOHSA, without the burden
of filing a new action”).
It is, in our view, this permissive means of ensuring the
survival of a wrongful death remedy beyond DOHSA’s original
statute of limitations--and nothing more--that the Supreme
Court was commenting on in Higginbotham when it described
Congress's judgment “on such issues as the beneficiaries, the
limitations period, contributory negligence, survival and
damages.” 436 U.S. at 625, 98 S. Ct. at 2015. In fact, if the
Dooley court’s broader interpretation of the Supreme Court’s
meaning were correct, the remainder of the above-quoted
paragraph in Higginbotham—where the Supreme Court speaks
of DOHSA as if it sounds only in wrongful death law, see
27a
Higginbotham, 436 U.S. at 625, 98 S. Ct. at 2015 (“The Act
does not address every issue of wrongful-death law”)—is
difficult to understand.
Finding nothing in the plain language of DOHSA that
suggests Congress intended to speak to the issue of survival
actions, we turn to DOHSA’s legislative history. We again find
no references to survival actions. As the Kuntz court has
observed:
Representative Volstead, who sponsored the bill, stated as
the purpose of the bill as follows:
The object of this bill is to give a cause of action in case
of death resulting from negligence or wrongful act
occurring on the high seas. Nearly all countries have
modified the old rule which did not allow relief in the
case of death under such circumstances. Under what is
known as Lord Campbell’s Act, England, many years
ago, authorized recovery in such cases. France,
Germany, and other European countries now followed
this more humane and enlightened policy and allow
dependent parties to recover in case of death of their
near relatives upon the high seas.
Congressional Record, 66th Congress, Volume 59, page
4482. These comments deal with dependents, beneficiaries,
and the Lord Campbell’s Act. Lord Campbell’s Act was a
wrongful death statute not a survival statute. See Gaudet at
page 579, 94 S. Ct. at page 812. Additionally, survival
actions do not involve dependents and beneficiaries, as do
wrongful death actions. Not only did Representative
Volstead discuss the bill in terms of beneficiaries and
dependents, but other representatives did likewise. See Mr.
Sonders, page 4485, Congressional Record, 66th Congress, ©
Volume 59.
28a
Kuntz, 573 F. Supp. at 1285. In other words, the entire debate
about DOHSA—which stretched over several sessions of
Congress—centered on matters related to wrongful death
actions, and did not even touch on the specific issue of whether
survival action remedies should be preserved or eliminated. See
also Azzopardi, 742 F.2d at 893 (“The legislative history of
DOHSA gives no indication that the statute was intended to
affect survival actions.”).°
‘The only potentially significant direct reference to survivai actions that
we have discovered is in a Yale Law Journal article authored in 1921, a little
more than a year after DOHSA was enacted. - he article is potentially
significant because the author, Robert M. Hughes, claims to have drafted
much of the language of DOHSA. See Hughes, Death Actions in Admiralty,
31 Yale LJ. 115, 116 (1921). Mr. Hughes’s comments therein indicate that
he was aware of the distinction between survival acts and wrongful death
acts, and that he viewed DOHSA as a wrongful death act. See 31 Yale L.J.
at 119-20, where the author states:
Statutes . . . usually follow one of two theories. Some give a right of
action to the injured party himself, and make that cause of action
survive. ... Others give an entirely new right of action to the relatives
or other parties injured by the death on account of their loss from the
death, and not on account of any right of action in the deceased himself
made to survive for their benefit... . (“The difference between the two
classes is well explained . , . [and t}he rationale of these decisions makes
the act [DOHSA] a death act, not.a survival act.”)
If anything, these comments tend to cut against the Dooley court’s view that
DOHSA contains a limited survival provision.
We also note one other potentially enlightening piece of information
from Mr. Hughes, found in his statement to the House Judiciary Committee
during hearings on a version of DOHSA considered during the Sixty-Fourth
Congress. See Bills Providing Right of Action for Death on the High Seas,
Hearing Before the Subcomm. H. Procedure, Jurisdiction, etc. of the House
of Representatives Comm. on the Judiciary, 64th Cong. (Feb.1916)
(statement of Hon. Robert M. Hughes) {hereinafter “ Hughes”}. According
to Mr. Hughes, an early version of DOHSA contained a provision stating the
following: -
[N]Jothing in this act shall be construed as abridging the rights of suitors
(continued...)
29a
Despite the dearth of textual evidence or legislative history
indicating that Congress intended to foreclose judicial
recognition of general maritime survival actions when it enacted
DOHSA, the District of Columbia Circuit found such an intent
based on differences between DOHSA and the Jones Act, both
of which were enacted in the same year. See Dooley, 117 F.3d
at 1481-82 (attributing significance to the presence of a survival
remedy in the Jones Act and the absence of such a remedy in
DOHSA). We find this shopworn argument unpersuasive.
First, we note that our colleagues in the Third Circuit rejected
this precise argument several decades ago. See Dugas v.
National Aircraft Corporation, 438 F.2d 1386, 1390 (3d 2
Cir.1971). What the Third Circuit correctly recognized is that
the Jones Act’s survival remedy is only derivative, arising from
a wholesale importation of FELA provisions into the seaman’s
context.° Dugas, 438 F.2d at 1390 (“ . . . Congress [simply]
s(...continued)
in tin ‘one ol any: Sumas oe Seevtency, oF in the Aims of tee Ueked
States other than in admiralty, to a remedy given by the laws of any
State or Territory in case of death from injury received elsewhere than
on the high seas, provided that there shall be but one recovery by the
person injured, or by or on behalf of any persons mentioned in section
| [which included various relatives of the decedent as well as the
personal representative of the decedent’s estate].
Hughes at 5. This provision was omitted via amendment on the floor of the
House of Representatives. Hughes at 5. While we hesitate to ascribe much
significance to the actions of the Sixty-Fourth Congress, when it was the
Sixty-Sicth Congress that ultimately enacted DOHSA, the omission of “one
recovery” language from an early version of DOHSA, does suggest that
Congress did not intend for DOHSA tc foreclose all other possible
remedies. ep
*The relevant provision of the Jones Act is codified at 46 U.S.C.App. §
688, which reads as follows:
| Any seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for damages at law,
(continued...)
30a
incorporated into the Jones Act the whole of Section 9 of the
F.E.L.A. along with its survival provision”). The Jones Act's
derivative survival remedy thus provides no clear guidance with
respect to Congress’s thinking about survival remedies
generally in the maritime context. Congress could have
incorporated FELA into the Jones Act specifically to provide a
survival action remedy, and could have also meant to
‘ distinguish Jones Act beneficiaries from DOHSA beneficiaries
thereby. But such a conclusion is highly speculative, and we are
unwilling to risk rewriting DOHSA under the guise of
interpreting it--at least where the interpretation would be
grounded on nothing more than speculation about Congress’s
intent.
In light of the absence of clear evidence that Congress
intended DOHSA to bar the recovery of damages from a
survival action, we believe the district court in this case properly
followed our colleagues in the First, Third, Fifth and Eighth
Circuits in recognizing a general maritime survival remedy and
in- permitting this remedy to supplement appellees’ recovery
*(...continued)
with the right of trial by jury, and in such action all statutes of the
United States modifying or extending the common-law right or remedy
in cases of personal injury to railway employees shall apply; and in case
of the death of any seaman as a result of any such personal injury the
personal representative of such seaman may maintain an action for
damages at law with the right of trial by jury;and in such action all
statutes of the United States conferring or regulating the right of action
for death in the case of railway-employees shall be applicable.
Jurisdiction in such actions shall be under the court of the district in
which the defendant employer resides or in which his principal office is
located.
The reference to statutes extending remedies to railway employees is
universally accepted as a reference to FELA.
‘3la
~ under DOHSA.’ See Barbe v. Drummond, 507 F.2d 794, 800
(ist Cir.1974); Kuntz, 573 F. Supp. at 1286; Azzopardi, 742
F.2d at 894; Spiller v. Thomas M. Lowe, Jr. & Assoc., Inc., 466
F.2d 903, 909-10 (8th Cir.1972); cf Greene v. Vantage
Steamship Corp., 466 F.2d 159, 166 n. 11 (4th Cir.1972)
(acknowledging substantial authority that a state law survival
statute cause of action can be joined with a cause of action
under DOHSA); Solomon v. Warren, 540 F.2d 777, 792» 20
(Sth Cir.1976) (allowing state law survival cause of act... for
pain and suffering to supplement DOHSA recovery), cert.
dismissed, 434 U.S. 801, 98 S. Ct. 28, 54 L. Ed. 2d 59 (1977).
2. Computation of damages
_ We next consider whether the district court erred in
determining the amount of damages. A review of the record
reveals that “the district court considered all appropriate
circumstances and the varyis.g importance of those circumstance
in arriving at its award.” Solomon, 540 F.2d at 792.
Accordingly, we conclude the district court provided a sufficient
explanation and adequate findings to support its award of
damages. Gray, 880 F. Supp. at 1570-72. In determining the
available damages, the district court also properly followed the
Supreme Court’s holding in Miles v. Apex Marine Corp., 498
U.S. 19, 34, 111 S. Ct. 317, 326-27, 112 L. Ed. 2d 275 (1990),
which provides that the Jones Act or FELA governs the
damages available in a general maritime law survival claim.
Because the Jones Act/FELA survival provision limits recovery
to losses suffered during the decedent’s lifetime, the district
court did not err in awarding damages only for pain and
’This is so in no small part because it “better becomes the humane and
liberal character of proceedings in admiralty to give than to withhold the
remedy.” Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387, 90 S.
Ct. 1772, 1781, 26 L. Ed. 2d 339 (1970) (quoting Chief Justice Chase in The
Sea Gull, | Chase 145, 21 F. Cas. 909, 910 (No. 12,578) (CC Md 1865)).
32a
suffering based on the few seconds of mental anguish each
decedent likely experienced before death.
F. Prejudgment Interest 3
The last issue we address is whether the district court erred
in failing to award prejudgment interest. The record is silent as
to the district court’s decision. As appellees point out, where
the proper award can be determined without further factual
findings by the district court, this court may exercise its
authority to award prejudgment interest. Self v. Great Lakes
Dredge & Dock Co., 832 F.2d 1540 (11th Cir.1987), cert.
denied, 486 U.S. 1033, 108 S. Ct. 2017, 100 L. Ed. 2d 604
(1988). With no record of the district court’s decision,
however, we cannot determine why the district court failed to
grant appellees an award of prejudgment interest. Lockheed
alleges that the district court possibly denied the interest
because appellees filed an untimely request. Although
prejudgment interest is generally granted in admiralty cases,
Self, 832 F.2d at 1550-51, a denial of prejudgment interest due
to an untimely application may not constitute an abuse of
discretion. Because the record is unclear, we remand the
determination whether appellees should receive prejudgment
interest to the district court.
CONCLUSION
In accordance with the foregoing, we remand on the
determination of prejudgment interest and affirm the judgment
of the district court in all other respects.
AFFIRMED IN PART AND REMANDED IN PART.
33a
APPENDIX B
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STACY C. GRAY, individually and as Surviving Spouse of Lt.
Douglas G. Gray, and as Personal Representativ< of Lt.
Douglas G. Gray, deceased,
Plaintiff,
Vv.
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a division of
Lockheed Corporation,
Defendant.
GRACE M. SCHUMACHER, individually and as Surviving Parent
of Lt. John T. Hartman, and as Personal Representative of
Lt. John Hartman, Deceased,
Plaintiff,
Vv.
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a division of
Lockheed Corporation,
Defendant.
34a
WILMA J. JENNINGS, individually, and as Surviving Parent of
Lt. David S. Jennings, and as Personal Representative of Lt.
David S. Jennings, Deceased,
Plaintiff,
Vv.
LOCKHEED AERONAUTICAL SYSTEMS COMPANY, a division of
Lockheed Corporation,
Defendant.
Civil Nos. 1:91-cv-2399-ODE; 1:91-cv-2400-ODE;
1:91-cv-2401-ODE ,
March 31, 1995
ORDER
ORINDA D. Evans, District Judge:
In these consolidated wrongful death and survival actions,
Plaintiffs seek damages due to their decedents’ deaths in the
crash of an S-3 Viking jet aircraft (“S-3") that Defendant, a .
Delaware corporation, manufactured and sold to the United
States Navy in 1975. Plaintiffs assert claims under the Death on
the High Seas Act, 46 U.S.C. App. §§ 761-768 (*DOHSA”),
and general maritime law. The court conducted a bench trial on
February 21, 23, 24, 27, and 28, and March 1, 6, 7, 8, and 9,
1995. Having heard, reviewed, and considered the evidence and
the arguments of the parties, the court makes the following
findings of fact and conclusions of law in accordance with
Fed.R.Civ.P. 52(a).
The S-3 had its genesis in a specific operational requirement
(“SOR”), a document the Navy uses to identify threats and to \
propose weapons systems to counter those threats. The SOR
35a
relevant here addressed potentially hostile submarines and
recommended the creation and acquisition of an antisubmarine
warfare (“ASW”) aircraft to help neutralize the threat these
submarines posed. From this SOR, the Navy sought proposed
designs for the new ASW aircraft from defense contractors via
a request for proposal (“RFP”). Defendant and other
contractors responded to the Navy’s RFP with specific
proposals.
The Navy selected Defendant to build the S-3 in mid-1969.
A “detail specification” covering more than six hundred pages
was part of the contract that Defendant and the Navy executed.
However, despite its length and title, the detail specification was
only the starting point for most of the S-3’s components.
A naval officer, Cpt. Fred Baughman, served from July 1968
to July 1973 as the Navy’s program manager for the S-3
procurement program.' Baughman, who worked from a
Washington, D.C. office, supervised approximately 25 to 30
Navy engineers who were part of the Navy’s Naval Plant
Representative Office (“NAVPRO”) at Defendant’s Burbank,
California factory, where the S-3 was designed and created.
NAVPRO- was Baughman’s on-site representative at
Defendant's factory.
NAVPRO engineers worked closely with Defendant’s
engineers on_many aspects of the S-3’s development. During
the design phase the Navy conducted a series of meetings called
the preliminary design review and the critical design review.
Once a prototype of the S-3 existed, Baughman and a team of
Navy experts conducted a functional configuration audit and
physical configuration audit. Following the completion of the
‘Baughman, now a retired rear admiral, testified at the trial for
Defendant.
36a
physical configuration audit, the Navy “froze” the S-3’s design
and would allow changes to the design only via a formal
process under the Navy’s control.
The Navy developed the testing regimen for the S-3.
Defendant’s test pilots were the first to fly the S-3. The Navy
received all test results. Navy pilots then flew the S-3 in a Navy
Preliminary Evaluation (“NPE”), a multi-phase test with
increased complexity and demands in each succeeding phase.
The Navy used the NPE to determine if the S-3 met
specifications and was safe to fly. None of Defendant's
employees flew with the Navy’s pilots during the NPE. After
the NPE, the Navy subjected the S-3 to Board of Inspection and
Survey (“BIS”) tests for a separate report to the Secretary of the
Navy on the S-3’s suitability for service use.
The S-3 ultimately passed all of the Navy’s acceptance tests.
Defendant delivered the particular S-3 involved in this action to
the Navy in September 1975.
At the time of their deaths, Plaintiffs’ decedents were
stationed aboard the U.S.S. John F. Kennedy, an aircraft carrier.
On October 7, 1989, the date the S-3 at issue crashed, the John
F. Kennedy was conducting flight operations 125 miles off the
coast of Virginia. Lt. Douglas G. Gray, the pilot of the S-3, and
Lt. John T. Hartman, the mission commander, respectively sat
in the left-front and right-front seats of the S-3. Air Warfare
Technician Second Class (“AW2") Tracy S. Mann, the sensor
operator, and Lt. (j.g.) David S. Jennings, the tactical
coordinator, respectively sat in the left-rear and right-rear seats.
The S-3 was asymmetrically loaded; this means that the left
wing held an 800-pound wing store, while the right wing held
a 200-pound wing store. Lt. Gray and the other crewmembers
properly conducted the preflight checks that are required prior
37a
to flying the S-3. The S-3 then was moved to the carrier’s
catapult, which is used to accelerate airplanes to flight speed.
Prior to the launch, Lt. Gray verified that the S-3’s control
surfaces (i.e., the ailerons, spoilers, and elevators) were working
properly by executing a “control wipeout,” which means that he
moved the pilot’s control stick laterally and longitudinally
through its range of motion so that the aircrew and sailors on the
deck could observe the movement of the control surfaces. He
then properly configured the control surfaces for a catapult
launch. Both engines were brought to full power and sounded
normal.
When the S-3 was iain the ie stroke was normal.
What appeared to be a momentary, orange and black fireball
approximately three to four feet in diameter was observed under
the S-3 as it traveled down the catapult. The S-3’s engines
sounded normal durihg the catapult stroke. The S-3 behaved
normally immediately after leaving the catapult, in that it left
the catapult with its wings level and began a shallow climb.
Then, after approximately two seconds, Lt. Gray initiated a slow
right roll. He attempted to halt this roll when the S-3 reached
20 degrees of bank angle, the normal bank angle for a clearing
turn. However, the S-3 did not respond to his movement of the
control stick. As the control stick moved to the lefi, the plane’s
right roll should have stopped but it did not.
When the S-3 reached 45 degrees of bank. angle, AW2 Mann
heard Lt. Gray exciaim “Oh my God! Eject! Eject! Eject!” The
S-3 is designed with a duplicate control stick on the mission
commander's side (i.e., the right side) of the cockpit; this stick
is slaved to the pilot's control stick and thus mimics the
movement of the pilot’s control stick. At the time Lt. Gray
ordered ejection, AW2 Mann observed Lt. Hartman’s contro] ©
38a
stick ail the way over to the left, to the point that it was touching
Lt. Hartman’s leg.
Upon hearing Lt. Gray’s ejection command, Lt. Hartman,
the designated ejector, immediately initiated the sequence that
would eject all four occupants from the S-3. The two rear
occupants of the S-3, Lt. Jennings and AW2 Mann, ejected first,
when the S-3 was at approximately 90 degrees of right bank
angle. Lt. Gray and Lt. Hartman ejected when the S-3 was at or
beyond 120 degrees of right bank angle.
None of the crewmembers’ parachutes had time to open
before impact with the water. All three decedents struck the
water with great force because of the angle of ejection and the
relatively high velocity they gained from the rocket motors on
the ejection seats. All three decedents suffered grievous, fatal
bodily injury upon impact with the water. Though located, Lt.
Hartman’s body ultimately was lost at sea due to its
entanglement in debris. Though injured, AW2 Mann survived
the crash.
”
Lt. Gray had more than 450 hours of flight experience in the
S-3 at the time of his death. The S-3 at issue was in the air for
approximately six to eight seconds after it left the carrier. Lt.
Gray determined that the S-3 was experiencing an
uncommanded right roll approximately three to four seconds
into the flight. The right roll was smooth and uninterrupted
until the S-3 impacted the water.
As will be discussed below, Plaintiffs contend that the S-3
crashed due to design defects in its aileron servo (“servo”). An
aileron is one cf the control surfaces that causes an airplane to
move when it is in flight. Specifically, an aileron is “a movable
part of an airplane wing or a movable airfoil external to the
wing at the trailing edge for imparting a rolling motion and thus
providing lateral control.” Webster's New Collegiate
39a
Dictionary 24 (1979). On the S-3, the servo links the pilot with
the ailerons.
The servo is approximately the size of a small automobile
engine or transmission. It is mounted inside the S-3’s fuselage
and is the link between the pilot and the ailerons. A cable
connects the pilot’s control stick to the servo’s input arm. A
cylindrical “ram” made of metal is mounted horizontally inside
the servo, at its very top. A rod attaches to the ram where the
ram protrudes from the servo; the rod then passes through the
wings and attaches to the ailerons.
The S-3 has two jet engines. When running, each engine
drives a hydraulic pump, which in turn powers an independent
hydraulic system. The left and right engines respectively power
the number one and number two hydraulic systems. Each
hydraulic system alone should provide 3000 pounds per square
inch (“psi”) of hydraulic pressure.
Ordinarily, the S-3’s servo functions in the “powered” mode,
using hydraulic power. In this mode, the pilot has no
mechanical link with the ailerons. Instead, the pilot’s
movement of the control stick moves the input arm, which in
turn moves a control valve inside the servo. The control valve
causes hydraulic fluid under pressure to move the ram to the left
or right; the movement of the ram causes the rod to raise or
lower the ailerons. For example, when the ram moves right, the
trailing edge of the right aileron rises and the trailing edge of the
left aileron drops.
In the event of a hydraulic failure, the servo should
automatically switch to “manual” mode, which is known as the
40a
Emergency Flight Control System (“EFCS”).? The key to
EFCS is a pin and a latch inside the servo. Adequate hydraulic
pressure in the servo causes strong springs to compress, holding
the pin out of the latch. When hydraulic pressure in both
systems drops below 800 psi, a shutoff valve at the bottom of
the servo should “trip,” cutting off all hydraulic pressure in the
servo. The absence of hydraulic pressure allows the springs to
expand; this expansion should move the pin into the latch, an
event called “latch-up.” Once latch-up occurs, there is a direct
mechanical link between the pilot and the ailerons, though the
pilot must put much more effort into moving the control stick.
In order for the servo to return to the powered mode (i.e., in
order for the shutoff valve to open), one of the hydraulic
systems must achieve pressure at or above 2000 psi, plus or
minus 300 psi. (Defendant's Ex. 3657 at 18.) There is a 1200
psi gap between the respective pressures for the powered and
manual modes to ensure that the servo does not cycle back and
“forth between the two modes.
During the S-3°s development, Defendant subcontracted
work on the servo to Bertea Corporation (“Bertea”), which
actually fabricated the servo.’ Bertea devéloped the acceptance
test procedure (“ATP”) for the servo. An ATP tests whether a
product performs in accordance with design specifications.
Robert Loschke, an engineer employed by Defendant, worked
on the design and development of the S-3. Appearing for
Defendant, he testified that a transition lag of .25 seconds
between the powered and manual modes would be hazardous.
*At the time of its design, this aspect of the servo was unique. At this
time, only one other plane in the United States’ inventory has a similar
system.
*Bertea is now a subsidiary of Parker-Hannifin Corporation
(“Parker-Hannifin”).
4la
Defendant intended for the latch-up to occur in one-fourth or
one-fifth of that amount of time. Nevertheless, the ATP for the
servo did not measure the speed of EFCS latch-up. The ATP
also was a static (as opposed to dynamic) test, in that it did not
test the servo’s operation while the servo was subjected to
simulated flight demands (such as inputs from movement of the
input arm or the ram).‘
In the spring of 1990, the Navy recovered the servo from the
crashed S-3.° Douglas Crawford, an engineer who worked for
Defendant from 1986 to 1992, provided product support to the
Navy for the S-3’s flight control systems during most of his
tenure with Defendant. He attended the post-crash testing of the
servo and submitted a “trip report” to Defendant regarding his
findings. (Plaintiffs” Ex. 220.)
The ATP’s static tests showed normal operation of the servo.
Id. at2. However, when Crawford deviated from the ATP and
moved the servo’s input arm to simulate commands from the
control stick, the servo’s shutoff valve tripped at 1400 psi, not
the specified 800 psi. /d. In other words, the servo’s shutoff
valve “sensed” 800 psi, even though the actual pressure was
1400 psi.
When the servo was disassembled after the foregoing tests,
the EFCS was found to be latched-up; i.e., the pin was in the
latch. Crawford, who appeared via videotaped deposition,
testified that the pin could be placed in the latch by hand,
though to do so required some force. Crawford observed a chip
‘In 1987, the S-3 involved in the mishap at issue here underwent a
maintenance procedure known as scheduled depot level maintenance
(“SDLM”). During SDLM, the servo was replaced with another servo that
Bertea had rebuilt.
“The S-3 was approximately 10,000 feet under the ocean’s surface.
42a
on the pin (i.e., there was a spot on the pin where the metal
plating was wom away). Crawford testified, and the court finds,
that the chip showed the pin had been fluctuating in and out of
the latch due to hydraulic pressure fluctuation in the servo.
When the pin and latch were measured, it was found that the
latch measured .3746, while the pin measured .37487. The
specification for each component requires a measurement of
.3750, plus or minus .0001. Jesse Dooman, one of Plaintiffs’
expert witnesses, testified, and the court finds, that the
out-of-tolerance latch would adversely affect the speed of
latch-up. :
_ Defendant’s own documents show that the S-3 has an
ongoing, unresolved problem with its flight control system. A
June 1985 document entitled “Lockheed Private Data [-]
Significant In-Service Problem Report” states that
[t]he S-3A has experienced flight control anomalies, both in
flight and on the ground. Lockheed correspondence and
Navy messages indicate that aircraft, at times, have had a
situation where the contro] stick apparently has no influence
on the control surfaces. Aircrews have reported that the
stick feels different, somewhere between normal powered
mode and Emergency Flight Control System (EFCS).
(Plaintiffs’ Ex. 132 at 1; accord Plaintiffs’ Exs. 70 and 138.) A
1987 memorandum from J.W. Schmitz, a staff engineer in
Defendant’s Military System Safety division, to another of
Defendant’s employees states that .
[a] recent report . . . described an in flight lateral control
system problem and highlights an urgent, repeating and an
as yet unresolved safety of flight problem.
This is the second documented lateral control system
problem for this airplane since 1984. For some unknown
43a
reason the S-3 seems to be vulnerable to periodic loss of
flight control effectiveness in flight.
(Plaintiffs’ Ex. 167 at 1.) Lastly, the JAG Report’s analysis and
conclusions state that “the aileron flight control servo has
twelve documented [incidents] of ‘free stick’ in the last eight
years.” (Plaintiffs’ Ex. 645.)
Plaintiffs produced expert testimony that the “fireball”
observed under the S-3 as it traveled down the catapult probably
was a large cloud of hydraulic fluid which escaped under high
pressure from a rupture in one of the S-3’s hydraulic systems.
The court finds that the “fireball” in fact heralded the failure of
one of the hydraulic systems. Crawford testified that the S-3’s
hydraulic systems bear the most burden during the moments
after takeoff, when the systems are called on to retract the
landing gear® and launch bar, as well as to operate the flight
control surfaces. Crawford stated that pressure dropped across
both hydraulic systems even with both systems working. Thus,
in the two seconds before Lt. Gray initiated the right roll, one of
the S-3’s two hydraulic systems had failed at the time when the
S-3 most needed hydraulic power. As a consequence, pressure
in the S-3’s remaining hydraulic system was much lower and
was fluctuating because of the changing demands on the system.
Plaintiffs offered expert testimony that the components in
the EFCS generated significant friction which would slow down
the rate at which the servo would transition to EFCS. Plaintiffs’
documentary evidence supports this testimony. In 1978,
Defendant prepared a document entitled “S-3A Primary Flight
*The JAG Report's findings of fact state that the S-3's gear was down
when it crashed. (Plaintiffs’ Ex. 651, P42.) However, none of the witness
statements cited in the findings of fact support this statement. See witness
statements cited in Plaintiffs’ Ex. 651, P42.
44a
Control Servo Linkage Study.” (Plaintiffs’ Ex. 500.) in this
document, Defendant proposed placing a needle bearing around
the pin in the latch mechanism in order to “reduce the loading
and friction of the manual reversion mechanism.” /d. at 2-3.
Unsigned engineering notes dated January 13, 1986 that
Defendant produced include the statement “ALEX W of
BERTEA claims 5-4-84 that the 90 Ib EFCS spring will not
overcome 20 # friction in RAM. . . . Thus surface bearing
friction and servo friction exceed the 20 # margin given by
ALEX.” (Plaintiffs’ Ex. 153.) The court also notes that
Defendant never conducted a kinematic study of the EFCS
mechanism to determine if it generated excessive friction.
In 1984 Lyle Schaefer, Defendant’s chief test pilot, verified
that free stick can occur in the S-3. In an interdepartmental
communication between Schaefer and J. B. Pray, another of
Defendant's employees, Schaefer wrote that “the ‘intermediate’
EFCS mode of no latch-up, no power and no control has been
tagged as a shutoff valve problem. Most [of the participants at
a conference hosted by the Navy] appeared to believe the
condition can exist.” (Defendant’s Ex. 1799.)
Plaintiffs and Defendant agree that all of the S-3’s systems
were functioning properly when it was hooked to the catapult.
Defendant contends that an engine failure, not a.problem with
the servo, caused the S-3 to crash. Specifically, Defendant
contends that the right engine began suffering a “partial thrust
loss” as the S-3 traveled down the catapult; i.e., something was
wrong with the engine and it began producing less and less
power. When the S-3 became airborne, the loss of power in the
engine caused increased drag, which led the S-3 to stall and
- crash,
Defendant’s stall theory is plausible. However, the evidence
does not support it. First, there was undisputed testimony at
45a
trial that Defendant adopted its stall theory only after discovery
had ended and shortly before trial was to begin.
Second, the Navy prepared a Judge Advocate General’s
Report (“JAG Report”) regarding the crash. The Navy rejected
engine failure as a cause of the S-3’s crash in the JAG Report’s
analysis and conclusions. (Plaintiffs’ Ex. 645.) Moreover, the
court has found above that the S-3 flew normally during the first
two seconds of flight. This initial period of normal flight is
inconsistent with the loss of power in one engine.
Third, witnesses testified, and the court finds, that the S-3
could fly off the deck of an aircraft carrier with only one engine.
Defendant’s theory requires the court to find that either Lt. Gray
failed to notice a right-engine failure or he noticed an engine
failure but failed to take the necessary steps to compensate for
the loss of power. However, Defendant produced no evidence
to support such a finding. By all accounts, Lt. Gray was a
competent, experienced pilot. Defendant produced no evidence
to challenge his abilities. Instead, it relied on an autopsy
finding that showed he was self-medicating with cold medicine
at the time of the crash despite a general prohibition on
self-medication in the naval aviation community. While the
amount of cold medicine in Lt. Gray’s system was higher than
the recommended therapeutic dosage, Defendant provided no
evidence by which the court can assess whether this overage
had any significance. Moreover, the Navy placed little credence
in Lt. Gray’s self-medication as a cause of the crash in the JAG
Report’s analysis and conclusions. See id. at 3-4.
Based on the foregoing discussion, the court declines to find
that the S-3 stalled and crashed due to a loss of power in its
right engine. On the other hand, the abundant evidence
discussed earlier shows that the following sequence of events ©
more probably than not led to the crash of the S-3: All systems
46a
on the S-3 were working properly when it was hooked to the
catapult . However, as the S-3 traveled down the catapult, one
of its hydraulic systems suffered a complete failure. Contrary ~
to expectations, pressure in the remaining hydraulic system
dropped because of the added demands for hydraulic power it
had to satisfy with the loss of the other system. Lt. Gray’s
initiation of the right roll, which necessarily moved the servo’s
input arm, cased the servo to attempt to transition into EFCS
at 1400 psi. However, the low, fluctuating hydraulic pressure,
coupled with the shutoff valve’s operation at a
higher-than-specified pressure, caused the servo to chatter at
millisecond intervals between the powered and manual modes.
The friction in the EFCS mechanism and a mis-sized latch
impeded the servo’s ability to transition swiftly into EFCS. The
chattering caused (1) the freezing of the ram in the right roll
position (with an attendant freezing of the aileron in the same
position) and (2) the condition known as “free stick,” in which
Lt. Gray’s movement of the control stick did not translate into
any movement of the control surfaces. The S-3 thus continued
the smooth right roll noted above until impact with the ocean.
GOVERNMENT CONTRACTOR DEFENSE
Because Plaintiffs assert that several design defects caused
the servo to chatter, the court must first determine whether
Defendant is immune from liability for these alleged defects
under the “government contractor defense.” The Supreme
Court adopted this defense as federal common law in Boyle v.
United Technologies Corp., 487 U.S. 500, 101. L. Ed. 2d 442,
108 S. Ct. 2510, (1988). Under this defense, a government
contractor is not liable for injuries caused by a product’s
defective design if the following elements exist:
(1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those
47a
specifications; and (3) the supplier warned the United States
about the dangers in the use of the equipment that were
known to the supplier but not to the United States.
Id. at 512. The court finds that Defendant failed to show the
existence of the first and second of the foregoing elements.
Defendant produced extensive evidence that there was a
close working relationship between it and the Navy during the
overall design and creation of the S-3. However, a close
working relationship is not enough to satisfy the first Boyle
prong. “Boyle makes clear that the requirements of ‘reasonably
precise specifications’ and conformity with them refer to the
particular feature of the product claimed to be defective.”
Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 799 (Sth
Cir. 1993) (citing Boyle, 487 U.S. at. 512) (emphasis in
original).
As noted above, Defendant subcontracted work on the servo
to Bertea. William Burriss, a civilian Navy engineer, was
deeply involved in the S-3 procurement program. Appearing at
trial as Defendant’s witness, he testified that typically a prime
contractor would have a large amount of control over a
subcontractor’s work on a component, with little Navy
involvement. The development of the servo followed this
pattern. Defendant produced no evidence that the Navy ever
reviewed and approved specific engineering drawings of the
servo. Cf Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 71
(3d Cir. 1990) (“The Air Force’s senior project engineer -
reviewed and approved every element of the proposed design
and every proposed design change.”); Kleemann v. McDonnell
Douglas Corp., 890 F.2d 698, 702.44th Cir. 1989) (“The Navy
here performed extensive review of detailed design drawings —
submitted by MDC.”), cert. denied, 495 U.S. 953, 109 L. Ed. 2d —
545, 110 S. Ct. 2219 (1990). Instead; Defendant relied on a
48a
document entitled “Equipment Specification - Power Servos,
Primary Flight Controls” as proof that the first Boyle prong was
satisfied. (Defendant’s Ex. 3657.) However, the Equipment
Specification was prepared in 1968, prior to the execution of the
contract between Defendant and the Navy and long before a
working servo existed. Moreover, a review of the Equipment
Specification reveals that it contains only narrative descriptions
of the various aspects of the servo; these descriptions are no
more detailed than the findings of fact in this order. See id.
passim. The court finds that these descriptions do not qualify
as “reasonably precise specifications.” Finally, Defendant relies
on the various reviews and audits, as well as the NPE and BIS
tests, of the S-3 to show the Navy’s approval of the servo.
However, Defendant produced no evidence that the Navy
reviewed and approved specific engineering drawings of the
servo during any of these events. Therefore, the Navy’s overall
acceptance of the S-3 following the various reviews, audits, and
tests was, with regard to the servo, merely a “rubber stamp”
approval that did not satisfy the first Boyle prong. Trevino v.
General Dynamics Corp., 865 F.2d 1474, 1480 (Sth Cir.), cert.
denied, 493 U.S. 935, 107 L. Ed. 2d 317, 110 S. Ct. 327 (1989).
Defendant thus failed to satisfy the first Boyle prong.
Assuming that the Navy had approved reasonably precise
specifications for the servo, it is clear that the servo did not
conform to those specifications. This is because the narrative
specifications introduced into evidence clearly called for an
automatic manual reversion system that operated without a
hazardous lag. The servo failed both of these requirements.
First, the foregoing discussion of chatter in the servo abundantly
demonstrates that it suffered from a hazardous lag. Second,
Plaintiffs produced expert testimony (including testimony by
Crawford) that the transition to EFCS could not occur because
Lt. Gray held the S-3's control stick as far to the left as it would
49a
go. It is undisputed that the ram must be within 60% of its
centered position for latch-up to occur; Plaintiffs’ experts thus
testified that the control stick had to be moved to within 60% of
its centered position to allow corresponding movement by the
ram. Defendant’s expert witness disagreed, contending that,
once a hydraulic failure occurred and the servo lost hydraulic
pressure, aerodynamic forces (i.e., the pressure of wind moving
over the wings) would force the ailerons down, which in turn
would move the ram to the centered position. However,
Defendant's expert witness did not address the situation that
existed here, where the servo was subjected to a diminished,
fluctuating hydraulic power source, not a total loss of hydraulic
power. Moreover, Mark McWhorter, one of Defendant’s
engineer employees, co-authored a memorandum with Heather
Shoup, a civilian Navy engineer, in May 19%2; the memo
expressly states that “the requirement for the stick being within
the 60% authority range is only applicable when transferring
into EFCS from powered flight. if the stick is outside of this
range the servo may not latch, resulting in a loss of feel or a free
stick.” (Plaintiffs’ Ex. 619.) The preponderance of the
evidence favors Plaintiffs’ assertion that the control stick had to
be within 60% of its centered position for latch-up to occur.
Thus, the EFCS was not automatic, since under some
circumstances the pilot had to take some affirmative action to
engage it.
LIABILITY
At the time they were filed, Plaintiffs’ complaints cuatained
the following identical counts against Defendant:
1-3:, negligence in the design of the aircraft, the
manufacture and construction of the aircraft, and the failure
to warn about the danger of the aircraft;
50a
4-6: gross negligence in the design of the aircraft, the
manufacture and construction of the aircraft, and the failure
to warn about the danger of the aircraft;
7-9: wanton and willful conduct in the design of the aircraft,
the manufacture and construction of the aircraft, and the
failure to warn about the danger of the aircraft; :
10-12: strict liability in tort, breach of the warranty of
fitness for a particular purpose, breach of the warranty of
being reasonably suited to the use intended, and breach of
the warranty of merchantability as to the design of the —
aircraft, the manufacture and construction of the aircraft, and
the failure to warn about the danger of the aircraft;
13-15: breach of the warranty of sea-worthiness as to the
design of the aircraft, the manufacture and construction of
the aircraft, and the failure to warn about the aircraft;
16-17: intentional torts of assault and battery because of
intentional improper design and intentional improper
manufacture and construction;
18-20: intentional infliction of emotional distress because
of faulty design, faulty maufacture and construction, and
failure to warn about the dangers of the aircraft.
In its June 17, 1992 order, the court in part granted
Defendant's motion for partial judgment on the pleadings. The
court found that Plaintiffs had no cause of action under
veorgia’s wrongful death statute, the Public Vessels Act, and
t. Suits in Admiralty Act. As for the specific counts in
Plaintiffs’ complaints, the court found that Plaintiffs had no
cause of action for a breach of warranty of seaworthiness or for
assault and battery. The court also granted judgment to
Defendant to the extent that Plaintiffs were suing in their
individual/survivor capacities. Thus, at this point, Plaintiffs
Sla
appear in these actions only as the personal representatives of
their decedents’ estates. en
In its September 30, 1994 order denying Defendant’s motion
for summary judgment, the court noted that Plaintiffs had
abandoned all of their state law claims. Thus, at this point, the
legal basis for Plaintiffs’ claims is DOHSA and general
maritime law. In their pretrial brief, Plaintiffs discuss only their
strict liability and negligence claims. The court therefore
dismisses the remaining, undiscussed claims as abandoned.
“Strict liability . . . is available in actions brought under the
[DOHSA].” Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d
330, 338 (Sth Cir. 1984). The court relies on generally-accepted
principles of tort law for the elements of this claim:
(1) One who selis any product.in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property,
if
(a) the seller is engaged in the business of selling such
a product, and
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is
sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product
from or entered into any contractual relation with the seller. |
Restatement (Second) of Torts, § 402A (1963-64).
52a
Based on the foregoing discussion, the court finds that the
S-3 at issue was in a defective condition, since under certain
circumstances the servo would chatter between the powered and
manual modes. The catastrophic effect of the free stick
condition Lt. Gray consequently faced shows that the defective.
condition was unreasonably dangerous. Finally, the court finds
that the conditions specified in § 402A((1)(a) and (b) existed at
the time of the S-3’s crash.’ Therefore, Defendant is liable to
Plaintiffs on their strict liability claims.
The generally-accepted standard for negligence is conduct —
that falls below what a reasonable person would have done
under like circumstan es. Restatement (Second) of Torts, §§
282-283 (1963-64). The circumstances present here were
Defendant’s creation of a unique, and therefore untested, flight
control component for a Navy warplane. The court finds that
Defendant was plainly negligent in the following omissions:
First, Defendant’s own expert witness testified that a .25
second transition lag between the powered and manual modes
was hazardous. The iives of an S-3’s crew literally hang in the
balance when EFCS transition occurs. Nevertheless, the ATP
(for which Defendant was responsible) made no provision for
testing the speed of latch-up. Moreover, testing the speed of
latch-up likely would have revealed the fact that the latch was
undersized.
Second, an ATP that simulated flight d demarids on the servo
would have allowed Defendant to discover the friction the
EFCS mechanism generated, the tripping of the shutoff valve at
higher-than-specified pressures, the fact that the latch was
"The servo's replacement in 1987 and the manufacturing defect in the
latch of the replacement servo have-no bearing on Defendant's liability’ for
the design defects discussed above.
53a
undersized, and the fact that the control stick had to be within
60% of its centered position for latch-up to occur.
DAMAGES
Two types of damages are at issue in these cases: “survival”
damages and “wrongful death” damages. “[A] survival action
compensates the decedent’s estate for damages incurred by him
personally while wrongful death recovery compensates the
decedent’s dependents and other survivors fur the damages they
incurred due to the death.” Law v. Sea Drilling Corp., 523 F.2d
793, 795 (5th Cir. 1975).*
Under DOHSA, a decedent’s personal representative may
sue for damages “for the exclusive benefit of the decedent’s
wife, husband, parent, child, or dependent relative.” 46 U.S.C.
app. § 761. DOHSA sets allowable damages as “a fair and just
compensation for the pecuniary loss sustained by the persons for
whose benefit the suit is brought.” 46 U.S.C. app. § 762.
Because of this pecuniary limitation, some courts in the past
allowed plaintiffs to supplement DOHSA claims with wrongful
death and survival claims under general maritime law. . A
gengral maritime law wrongful death claim allowed a plaintiff
to seek loss of society damages, while a general maritime law
~ survival claim allowed the award of damages for the decedent’s
pain and suffering and lost future income (without reference to
the loss of the decedent’s survivors), as well as punitive
damages. E.g., Law v. Sea Drilling Corp., 510 F.2d 242, 250,
reh'g denied, 523 F.2d 793 (Sth Cir. 1975) (loss of society
damages on general maritime law wrongful death claim).
-
*In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir: 1981),
the Eleventh Circuit adopted as binding precedent decisions of the former
Fifth Circuit handed down prior to October 1, 1981.
\
54a
In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 56 L.
Ed. 2d 581, 98 S. Ct. 2010 (1978), the Supreme Court addressed
an action that arose from an accident on the high seas (like the
instant accident), not territorial waters. The Court rejected the
piggy-backing of general maritime law wrongful death claims
on DOHSA claims by holding that DOHSA was the sole
remedy for accidents on the high seas. Higginbotham, 436 U.S.
at 623-24. The Court thus rejected loss of society damages for
accidents occurring on the high seas. /d. The issue that remains
is whether, after Higginbotham, Plaintiffs have viable survival
claims under general maritime law. f
In the second Law opinion, the Fifth Circuit endorsed a
general maritime law survival action. /d., 523 F.2d at 795. The
Fifth Circuit has answered the question whether such a survival
action survived the Supreme Court’s Higginbotham decision:
The Supreme Court granted certiorari to decide whether in
addition to the damages explicitly authorized by DOHSA,
the Moragne wrongful death remedy could by used in a
DOHSA suit to recover non-pecuniary damages. The Court
held that DOHSA was intended to be the exclusive wrongful
death remedy in its area of coverage, and therefore the
Moragne action could not be coupled with a DOHSA action
to recover [non-pecuniary] damages for wrongful death. . . .
The limited nature of this holding must be emphasized. Like
DOHSA itself, Higginbotham treats solely wrongful death
and wrongful death damages; it does not address survival
actions. Given this, Higginbotham cannot be read as
authority for the preposition that DOHSA precludes a
survival action in the case of deaths occurring on the high
seas. °
Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890,
894 (Sth Cir. 1984) (citations omitted) (emphasis in original).
~ Given Azzopardi’s persuasive reasoning, the court finds that
55a
Plaintiffs have viable survival claims under general maritime
law.. However, the court also finds that Plaintiffs may recover
only pain and suffer.ag damages on these claims. The Supreme
Court’s opinion in Miles v. Apex Marine Corp., 498 U.S. 19, 36,
112 L. Ed. 2d 275, 111 S. Ct. 317 (1990), mandates this
limitation.
In Miles, the Supreme Court rejected a plaintiff's bid for
damages for her decedent’s lost future income pursuant to a
survival claim under general maritime law:
We sail in occupied waters. Maritime tort law is now
dominated by federal statute, and we are not free to expand
remedies at will simply because it might work to the benefit
of seamen and those dependent upon them. Congress has
placed limits on recovery in survival actions that we cannot
exceed. Because this case involves the death of a seaman,
we must look to the Jones Act.
The Jones Act/[Federal Employers’ Liability Act (“FELA”)]
survival provision limits recovery to losses suffered during
the decedent’s lifetime. . . . Because Torregano’s estate
cannot recover for his lost future 3 income under the Jones
Act, it cannot do so under general maritime law.
Miles, 498 U.S. at 36. Thus, in Miles the Supreme Court
expressly held that the damages available on a general maritime
law survival claim must be governed by the damages available
under the Jones Act and FELA. Punitive damages are not
available on a survival claim under the Jones Act or FELA.
Wildman v. Burlington N. R.R. Co., 825 F.2d 1392, 1395 (9th
Cir. 1987) (FELA); Kopczynski v. The Jacqueline, 742 F.2d
555, 560-61 (9th Cir. 1984), cert. denied, 471 U.S. 1136, 86 L.
Ed. 2d 696, 105 S. Ct. 2677 (1985) (Jones Act); Kozar v.
Chesapeake & Ohio R. Co., 449 F.2d 1238, 1240-43 (6th Cir.
1971) (FELA).
Poh AN Sy ay a St
56a
In summary, the finds that DOHSA is the exclusive
basis for Plaintiffs’ wrongful death claims. Thus, Plaintiffs may
recover wrongful death damages for loss of support, loss of
services, and funeral expenses, but no damages for loss of
society.” The court further finds that Plaintiffs have viable
survival claims under general maritime law. Plaintiffs may
recover damages for pain and suffering on these claims, but not
punitive damages or damages for lost future income. The
damages for pain and suffering awarded on these claims must
go to Plaintiffs’ decedents’ respective estates. Law, 523 F.2d at
795.
Lt. Gray was 29.84 years old at the time of his death. His
annual salary was $30,466.80 exclusiye of fringe benefits. So.
Plaintiffs’ Ex. 457.) His fringe benefits included
comprehensive medical care, retirement benefits, access to base
exchanges and commissaries, and use of a world-wide network
of clubs and recreational facilities. His life expectancy was
42.94 years, while his work life expectancy was 32.44 years. Lt.
Gray was survived by his wife, Plaintiff Stacy C. Gray. Mrs.
Gray was thirty-one years old at the time of trial.
Lt. Hartman was 31.4 years old at the time of his death. His
annual salary and fringe benefits were approximately the same
as Lt. Gray’s. His life expectancy was 41.48 years, while his
work life expectancy was 30.97 years. Lt. Hartman was
survived by his wife, Debra Kelly Hartman Elliot,'° his mother,
’ “Given § 762's language, wrongful death damages are measured from
the survivor's point of view, not the decedent's.
‘At trial, Mrs. Elliot testified that she had remarried. This fact is
irrelevant to the court's calculation of damages. Brown v. United States, 615
F. Supp. 391, 397-98 (D.C. Mass. 1985), dismissed, 795 F.2d 76 (Ist Cir-
1986). cert. denied, 479 U.S. 1058 (1987), Blumenthal v. United States, 189
F. Supp. 439, 449 (E.D. Pa. 1960), aff'd, 306 F.2d 16 (3d Cir. 1962).
57a
Plaintiff Grace M. Schumacher, his father, Donald Schumacher,
and several siblings. At the time of trial, Mrs. Elliot was
twenty-nine years old and Mrs. Schumacher was seventy-five
years old.
Lt. Jennings was 28.3 years old at the time of his death. His
annual salary was $20,210.40 exclusive of fringe benefits. (See
Plaintiffs’ Ex. 459.) His fringe benefits were the same as the
othet two decedents’. His life expectancy was 44.3 years, while
his work life expectancy was 33.74 years. Lt. Jennings was
survived by his mother, Plaintiff Wilma J. Jennings, his father,
Frank Jennings, and a brother. At the time of trial, Mrs.
a was fifty-seven years old.
“On the Wron |
only for herself; Mrs. Schumacher claims damages for herself
and for Mrs. Elliot; and Mrs. Jennings claims damagés only for
herself. On the survival claims, Plaintiffs seek damages on
terre eee prea vee
behalf of their decedents’ respective estates; letters testamentary -
were placed into evidence for each of the named Plaintiffs.
(Plaintiffs’ Exs. 457-459.)
In determining the damages Plaintiffs are entitled to for the
loss of their decedents” support, the court has calculated each
decedent's lifetime earnings. Contrary to Plaintiffs’ position at
trial, the court finds that gross earnings must be reduced by
income taxes. Norfolk & Western R. Co. v. Liepelt, 444 U.S.
490, 493, 62 L. Ed. 2d 689, 100 S. Ct. 755 (1980) (“It is [the
wage earner’s] after-tax income, rather than his gross income
before taxes, that provides the only realistic measure of his
ability to support his family.”). The court accordingly has
deducted twenty percent of each decedent’ s gross lifetime
earnings to account for income taxes. The court also has
reduced gross lifetime earnings to account for each decedent’s
personal consumption. and has discounted each decedent's net
™
58a
lifetime earnings to present value. The sums awarded represent
the actual pecuniary loss of the respective Plaintiffs.
Based on the foregoing calculations, the court awards loss of
support damages to Mrs. Gray in the amount of $1.5 million,
and to Mrs. Schumacher (including the claim on behalf of Mrs.
Elliot) in the amount of $1.2 million. Regarding Mrs. Jennings,
the court takes special note of her testimony that Lt. Jennings
each year gave her several thousand dollars, as well as the fact
that after his death she sought and received welfare benefits
(from 1991 to 1993). From these facts, the court finds that Lt.
Jennings’ support to his mother would have been more
extensive than is ordinarily the case. The court thus awards
Mrs. Jennings loss of support damages in the amount of
$ 600,000.00.
— Having Considered the testimony of the Piamtitis and Mrs.
Elliot, as well as the arguments of the parties, the court awards
loss of services damages to Mrs. Gray in the amount of
$ 300,000.00, to Mrs. Schumacher (including the claim on
behalf of Mrs. Elliot) in the amount of $300,000.00, and to Mrs.
Jennings in the amount of $175,000.00. These sums represent
present cash value and are the actual pecuniary losses of each
Plaintiff. The court awards no funeral expenses because
Plaintiffs produced no evidence on this element of damages.
On the issue of pain and suffering, the court finds that each
decedent likely experienced a few seconds of mental anguish
prior to his death. Therefore, the court awards each Plaintiff
$ 50,000.00 as the personal representative of her decedent's
estate.
In summary, the court finds Defendant liable for damages as
follows:
omer ©
59a
Loss of Loss of Pain and
Support Services Suffering''
Gray $1.5 mil. $300,000 $50,000
Schumacher $1.2 mil. $300,000 $50,000
Jennings $600,000 $175,000 $50,000
CONCLUSION
Accordingly, all claims remaining in Plaintiffs’ complaints
are DISMISSED with prejudice with the exception of the
wrongful death and survival claims for negligence and strict
liability under DOHSA and general maritime law. Plaintiffs
shall have judgment against Defendant on these remaining
claims. Plaintiff Stacy C. Gray is AWARDED $1.8 million for
her own damages and $50,000.00 as the personal representative _
of the estate of Lt. Douglas G™ Gray. Plaintiff Grace M.
Schumacher is AWARDED $1.5 million for her own damages
and the damages of Debra Kelly Hartman Elliot, and
$ 50,000.00 as the personal representative of the estate of Lt.
John T. Hartman. Plaintiff Wilma J. Jennings is AWARDED
$ 775,000.00 for her own damages and $50,000.00 as the
personal representative of the estate of Lt. (j.g.) David S.
Jennings. The Clerk is DIRECTED to enter judgment for
Plaintiffs in accordance with the terms of this order.
SO ORDEREL , this 31 day of March, 1995.
/s/ Orinda D. Evans
ORINDA D. EVANS
UNITED STATES DISTRICT JUDGE
"As noted above, these damages must be distributed through the
decedents’ respective estates.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.