Petition for Writ of Certiorari — Mahalek v. Korean Air Lines, Co.

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No.

DEEICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

THOMAS MAHALEK

Petitioner,

Vv.

KOREAN AIR LINES, CO., LTD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

PETITION FOR WRIT OF CERTIORARL

RICHARD E. BROWN

(Counsel of Record)

BROWN, MONZIONE, FABBRO,

ZAKARIA & SCARLETT

900 Montgomery Street

San Francisco, California 94133

(415) 834 -1111

A ttomeys for Petitioner.

i

QUESTION PRESENTED FOR REVIEW

1. Must a surviving sibling prove that they were

financialiv dependent on a decedent in order to recover

damages ior loss of society under the Warsaw Convention?

li

Table of Contents.

Question presented for review

Table of authorities cited

Opinions below

Jurisdiction

Statutory provisions involved

Statement

Summary of the argument

Argument

I. Certiorari should be granted because of the

close relationship of the question raised to the

question presented in Zicherman v. Korean

Air Lines, Co.

II. Certiorari should be granted to resolve conflict-

ing opinions on recovery for loss of society

damages

Ill. Cases pending across the country await definite

ruling on damages recoverable under the

Warsaw Convention

Conclusion

Table of Authorities Cited.

CASES.

Anderson v. Whittaker Corp., 894 F.2d 804 (1990)

In re Korean Air Lines Disaster of September 1, 1983

575 F.Supp 342 (J.P.M.D.L. 1983).

AO ~A NY NY NO =

10

ba aca aaa

ili

TABLE OF AUTHORITIES CITED (CONT'D)

In re Korean Air Lines Disaster of September 1, 1983

807 F.Supp. 1073 (S.D.N.Y. 1992) 3

Pagnucco et al. v. Pan American World Airways, Inc,

F.3d (Nos. 1280, 1281, 1282, 1994)

10

Porter v. Dicken, 328 U.S. 252 (1946) 7

Porter v. Lee, 328 U.S. 246 (1946) 7

Sea-Land Services, Inc v. Gaudet, 414 U.S. 573 (1974) 8

Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455 (1985). 8

8

Sutton v. Earles, 26 F.3d 903 (9th Cir. 1994) S. 7,

Taylor v. McElroy, 358 U.S. 918 (1958), 360 U.S.

709 (1959) 7

Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d

1084 (1993) 6

Zicherman v. Korean Air Lines, Co., 43 F.3d 18

(2nd Cir. 1994) 4,6

Zicherman v. Korean Air Lines, Co., 1994 WL

606516 (2nd Cir. N.Y. November 3, 1994) 4

Zicherman v. Korean Air Lines, Co., S.Ct. 1995

(115 S.Ct. 1689) 5

STATUTES AND RULES.

United States Code

28 U.S.C. § 2101(e)

28 U.S.C. § 1254(1)

49 U.S. C. § 1502 2

NN

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

THOMAS MAHALEK

Petitioner,

¥.

KOREAN AIR LINES, CO., LTD,

Respondent.

PETTTION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

PETITION FOR WRIT OF CERTIORARL

Thomas Mahalek respectfully petitions for a writ of

certiorari to review the judgment of the United States District

Court for the Northern District of California.

OPINIONS BELOW

The court of appeals has not rendered an opinion. The

opinion of the district court (App., infra, Al) is unreported.

The amended opinion of the district court (App., infra, A2) is

unreported.

2

JURISDICTION

Notice of Appeal was filed March 24, 1995. Appeal was

properly docketed by the Ninth Circuit on March 28, 1995.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1) and 28 U.S.C. §2101(e). Petitioner seeks review of

the case below before judgment has been entered in the Court

of Appeals. The case below is of imperative public

importance and requires immediate settlement in this Court.

PROVISION OF LAW INVOLVED

This case raises the interpretation of Article 17 of The

Warsaw Convention, known formally as the Convention for

Unification of Certain Rules Relating to International

Transportation by Air, 49 Stat. 3000, T.S. No. 876 (1934)

reprinted in 49 U.S.C. §1502 note.

WARSAW CONVENTION

ARTICLE 17

"The carrier shall be liable for damage sustained in the

event of the death or wounding of a passenger or any other

bodily injury suffered by a passenger if the accident which

caused the damage so sustained took place on board the

aircraft or in the course of any of the operations of embarking

or disembarking."

STATEMENT OF THE CASE

Korean Air Lines Flight 007 strayed into Soviet airspace

and was shot down on September 1, 1983. All those aboard

perished. Among the passengers was Muriel A.M.S. Kole,

whose brother, Thomas Mahalek ("Mahalek"), is the Petitioner

before this Court.

3

The Petitioner filed suit against Korean Air Lines Co., Ltd.

("KAL") in the Northern District of California. Along with all

other federal court actions arising out of the KAL tragedy, the

Petitioner's case was transferred to the United States District

Court for the District of Columbia for consolidated

proceedings on the question of liability. See Jn re Korean Air

Lines Disaster of September 1, 1983, 575 F.Supp. 342

(J.P.M.D.L. 1983).

Following a jury trial, KAL was found liable for "wilful

misconduct" in connection with the Flight 009 tragedy. Under

Article 25 of the Warsaw Convention, KAL therefore could

not invoke the $75,000.00 cap on damages that would

otherwise be available. The Petitioner's case was then

remanded to the district court for a damages trial.’

Before a jury was empaneled to assess damages against

KAL, the district court ruled it would follow Judge Motley's

ruling as set forth in Jn re Korean Air Lines Disaster of

September I, 1983, with respect to the applicable damage

law, and that Petitioner could recover for the loss of the

decedent's society, and for mental injury he suffered in the

aftermath of the tragedy.” See 807 F.Supp. at 1084-1088. The

district court did not require that the Petitioner prove he was

financially dependent on the decedent in order to recover

damages for loss of society.

After hearing evidence, the jury awarded damages to the

Petitioner as follows:

1. Loss of society $ 75,000

The District Court entered final judgment. (App., infra, Al)

Pending before the District Court were Petitioner's Motion for

‘In the interests of brevity, some of the steps along the way of

the complex multi-district proceedings have been omitted.

*Petitioner is not seeking review of this element of damages.

4

Prejudgment Interest and Bill of Costs, and KAL's Motion for

Judgment as a Matter of Law.

Shortly thereafter, KAL filed a Motion to Vacate and Set

Aside the Liability Judgment; Petitioner's action was re-

transferred to the District of Columbia. KAL's Motion to

Vacate and Set Aside the Liability Judgment was denied, and

Petitioner's action was remanded back to the damage trial

court. Seventeen months after entering judgment, the District

Court granted KAL's Motion for Judgment as a Matter of Law,

and issued an Amended Judgment, (App., infra, A2) Vacating

the Jury Verdict. Petitioner's Appeal of the Amended

Judgment is now pending in the Court of Appeals for the

Ninth Circuit.

In a companion action, Zicherman v. Korean Air Lines,

Co., 43 F.3d 18 (1994), Marjorie Zicherman, sister and Muriel

Mahalek, mother of decedent Muriel A.M.S. Kole, filed suit

against KAL in the Southern District of New York. Each

Petitioner sought recovery in_ her individual capacity, and

Zicherman also sued as personal representative of her sister's

estate. After hearing evidence, the jury awarded damages to

the Plaintiffs which included damages for loss of society and

mental injury. The district court computed prejudgment

interest, and entered final judgment.

KAL noticed an appeal from the district court's final

judgment, contesting all of the damages awarded on both legal

and factual grounds. In an opinion dated November 3, 1994,

1994 WL 606516 (2nd Cir. N.Y.) the Second Circuit affirmed

the District Court's judgment, with two important exceptions:

1. The Second Circuit ruled that damages for loss of

society cannot be recovered under the Warsaw Convention

unless the surviving relative was financially dependent on the

decedent;

2. The Second Circuit also ruled that damages for mental

injury are not recoverable under the Warsaw Convention under

any circumstances. &

Because the jury had not been instructed that financial

dependency was a prerequisite to recovery for loss of society,

the Second Circuit examined the record for evidence of

financial dependency. It found that Mahalek was not

financially dependent on her daughter, and accordingly vacated

all of the damages that Mahalek had been awarded. As to

Zicherman, the Second Circuit found some evidence of

financial dependency, and therefore remanded the case back to

the District Court for a determination on this narrow question.

The mental injury to Zicherman was vacated.

After the Second Circuit issued its November 3 opinion,

KAL petitioned for a rehearing. On December 5, 1994, the

Second Circuit withdrew its initial opinion, and filed an

amended opinion. In the amended opinion, the Second Circuit

ruled that the jury's awards for loss of support and loss of

inheritance were also subject to a financial dependency

requirement. These two awards were therefore vacated,

pending further proceedings in the District Court.

Zicherman and Mahalek petitioned this Court for a writ of

certiorari which was granted on April 17, 1995 (115 S.Ct.

1689.)

REASONS FOR GRANTING THE PETITION

The decision below is erroneous and the issue that it

addresses is important. The decision in this case conflicts

with Sutton v. Earles, 26 F.3d 903 (9th Cir. 1994). Sutton,

conflicts with the Second Circuit's decisions in Zicherman v.

Korean Air Lines, Co., supra, and Wahlstrom v. Kawasaki

Heavy Indus., Ltd., 4 F.3d 1084 (1993). At both the circuit

court and district court level conflicting decisions have

occurred. There are a multitude of cases involving the same

issue that are waiting to be tried and are in need of guidance

from this Court. This case, along with Zicherman which is

now pending before this Court, is a timely and rare

6

opportunity to provide that guidance.

1. The case below arises out of the same event and

involves the same decedent as the Zicherman case which is

presently before this Court on writ of certiorari.

2. The opinion below raises important legal questions

identical to the questions presented in Zicherman v. Korean

Air Lines, Co., 43 F.3d 903 (2nd Cir. 1994), which is

presently pending before this Court.

3. A conflict exists among district courts and circuit

courts as to whether federal damage law requires a showing of

financial dependency in order to recover loss of society

damages. By imposing a financial dependency requirement,

the district court's and Second Circuit's ruling unduly restricts

recovery. By adopting a cruel and irrational rule of law, one

that is particularly inappropriate under the unique structure of

the Warsaw Convention, it affords an unconscionable degree

of economic protection to the airline industry where a carrier

has been found liable for egregious, wilful misconduct.

4. Numerous cases arising from the KAL tragedy and the

disaster at Lockerbie, Scotland are pending in Courts of

Appeal and District Courts around the country. This Court

should provide definitive guidance on the elements of damages

recoverable under the Warsaw Convention to prevent

conflicting and inconsistent results.

ARGUMENT

L CERTIORARI SHOULD BE GRANTED BEFORE JUDGMENT

BELOW BECAUSE OF THE CLOSE RELATIONSHIP OF THE

QUESTION RAISED TO THE QUESTION PRESENTED IN

ZICHERMAN V. KOREAN AIR LINES, Co.

The case below presents a question identical to the

question presented in Zicherman v. Korean Air Lines, Co., 43

F.3d 18 (2nd Cir 1994). This Court granted certiorari in the

7

Zicherman case on April 17, 1995. (115 S.Ct 1689). Petitioner

in the case below, Thomas Mahalek, is brother to the

Petitioners in Zicherman.

This Court has granted certiorari where a petition for

certiorari presents a question that is identical with, or similar

to, an issue already pending before this Court in another case

in which certiorari has been granted. See, Taylor v. McElroy,

358 U.S. 918 (1958), 360 U.S. 709, 710 (1959). See also

Porter v. Dicken, 328 U.S. 252, 254 (1946) (certiorari was

granted before judgment below "by reason of the close

relationship of the important question raised to the question

presented in Porter v. Lee" (328 U.S. 246 (1946))).

The District Court followed the rule embraced by the

Second Circuit: financial dependency is required to recover

loss of society damages under general maritime law, although

the Ninth Circuit has reached the opposite result in Sutton v.

Earles, 26 F.3d 903 (1994). Petitioner's case is currently before

the court of appeals for the Ninth Circuit.

There exists a conflict between the circuits on this issue.

This Court should grant Thomas Mahalek's Petition to allow

Petitioner to argue directly before this Court, to resolve a

matter of great importance and to correct the District Court's

error.

IL CERTIORARI SHOULD BE GRANTED TO RESOLVE CONFLICTING

OPINIONS ON RECOVERY FOR Loss OF SOCIETY DAMAGES.

The District Court followed Second Circuit precedent

which drew exclusively on general federal maritime law to

decide what damages are recoverable under the Warsaw

Convention. The Second Circuit then followed those Circuit

Courts of Appeal that imposed a financial dependency

requirement for loss of society damages under general

maritime law. See, e.g., Anderson v. Whittaker Corp., 894

F.2d 804, 811-12 (6th Cir. 1990); Sistrunk v. Circle Bar

Drilling Co., 770 F.2d 455 (Sth Cir. 1985). The Second Circuit

recognized, however, that the Ninth Circuit has reached the

opposite result; the Ninth Circuit ruled that there is no need

to establish financial dependency. Su on v. Earles, 26 F.3d

903, 914-17 (9th Cir. 1994).

Although the Second Circuit's position is followed by other

circuits, the rule espoused by the Ninth Circuit is more

sensible, and should be adopted. Financial dependency has no

rational relationship of any kind to loss of society, and it is

intolerable and inhumane to suggest otherwise. A brother's

loss of love and affection for his sister, as well as a parent's

loss of a child will more often times occur in the absence of

financial dependency. In the case below, there was ample

evidence of Mahalek's loss. Mahalek did not look to his sister

for financial support; as a result, the jury's finding of his loss

is somehow deemed irrelevant. Had he been less self-

sufficient, and insisted on support from the decedent, he would

have been allowed to recover. This is an absurd result, and

does not comport with any sense of justice or decency and it

must not stand. More aptly stated; money should not be a

prerequisite to love.

This Court has recognized that, at least for federal general

maritime wrongful death actions, loss of society is recoverable.

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974).

Although the issue of financial dependency was not raised

under the facts of Gaudet, imposing a dependency requirement

is inconsistent with this Court's definition of "society" as

embracing a broad range of mutual benefits each family

member receives from the others’ continued existence,

including love, affection, care, attention, companionship,

comfort, and protection. 414 U.S. at 585 (emphasis added).

It must also be remembered that the case below was not a

maritime case per se, but rather a Warsaw Convention case.

9

Although the Second Circuit drew on maritime law for some

guidance in construing the Convention, it failed to take note

of one special feature not found in maritime law: the damage

cap. In the vast majority of internatical aviation accidents,

Article 25 of the Warsaw Convention limits the air carrier

liability to $75,000.00 per passenger. This is a tremendous

economic advantage for the aviation industry, one that the

shipping industry does not have. As a result, in the rare case

of wilful misconduct, it is in conflict with the Convention

itself to further limit liability by imposing the additional

barrier of financial dependency as a prerequisite to loss of

society damages.’

TL CASES PENDING ACROSS THE COUNTRY AWAIT A DERINITE

RULING ON DAMAGES RECOVERABLE UNDER THE

WARSAW CONVENTION.

There are currently at least 31 pending cases arising out of

the KAL tragedy that have not yet had a jury trial to assess

damages. In addition, KAL has appeals of damage verdicts

which are pending in the Second, Sixth and Ninth Circuit

Courts of Appeal, as well as the District of Columbia Circuit

Court of Appeals. Given the uncertainty over the elements of

damages recoverable under the Warsaw Convention, the risk

of inconsistent treatment of similarly situated plaintiffs is

great.

It should also be noted that the bombing of Pan American

flight 103 over Lockerbie, Scotland, led to a finding of wilful

*For these reasons, awards for loss of support and loss of

inheritance should also be unfettered by a financial dependency

requirement.

10

misconduct by the defendant airline. See Pagnucco et al. v.

Pan American World Airways, Inc. F.3d __ (Nos.

1280, 1281, 1282, 2d. Cir., 1994) There have been two

damage trials already and there are scores of damages cases

waiting to be tried in the aftermath of the Lockerbie decision.

These cases also await definitive guidance from this Court on

the damages available under the Convention. In sum, the

authorities are in considerable disagreement on a matter of

importance to the courts, to Thomas Mahalek, and to many

other parties who are similarly situated. This case presents

this Court with the opportunity to resolve a conflict among

district courts and circuit courts and to bring uniformity to this

area of law. Therefore, the Court should grant the petition.

CONCLUSION

Certiorari should be granted to review the decision below.

Respectfully submitted,

RICHARD E. BROWN

(Counsel of Record)

BROWN, MONZIONE, FABBRO

ZAKARIA & SCARLETT

900 Montgomery Street

San Francisco, California 94133

(415) 834-1111

Attorneys for Petitioner

Appendix Table of Contents.

Appendix A

Judgment on Jury Verdict

Appendix B

Order Vacating Judgment on Jury Verdict

Appendix C

Exhibit A to Reply of Korean Air Lines

Co., Ltd. to Plaintiff's Supplemental Memorandum

of Points and Authorities in Opposition to

Motion for Judgment as a Matter of Law

Appendix D

Notice of Appeal

Appendix E

Assignment of Docket Number, Ninth Circuit

Court of Appeals

Appendix F

Request for Voluntary Dismissal

Appendix G

Order Granting Motion for Voluntary Dismissal

Al2

Al3

Al

APPENDIX A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THOMAS L. MAHALEK, individually C-83-4381 WHO

and as the heir of MURIEL KOLE,

Plaintiff,

vs.

KOREAN AIRLINES, CO., LTD.

Defendant.

JUDGMENT ON JURY VERDICT

This action having come on for trial before the Court and

a jury, the Honorable William H. Orrick, District Judge,

presiding, and the issues having been duly tried and the jury

having duly rendered its verdict,

IT IS ORDERED AND ADJUDGED that:

1. Plaintiff, Thomas L. Mahalek, suffered mental anguish

and grief as a result of the death of Muriel Kole.

2. Plaintiff's mental anguish and grief did not result in

actual mental injury accompanied by physical manifestations

or aggravation of preexisting physical conditions that

physically debilitated him with grief.

3. The amount of loss of love, affection and

companionship that plaintiff has suffered (a) from September

1, 1983, to date of trial is $75,000; and (b) from date of trial

forward is zero.

Dated: October 28, 1993.

William H. Orrick

United States District Judge

A2

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THOMAS L. MAHALEK, individually C-83-4381 WHO

and as the heir of MURIEL KOLE,

Plaintiff,

VS.

KOREAN AIRLINES, CO., LTD.

Defendant.

ORDER

Pending before this Court are plaintiff Thomas L.

Mahalek's ("Mahalek") motions for prejudgment interest and

costs and defendant Korean Air Lines Co.'s ("“KAL") motion

for judgment as a matter of law. The Court having considered

the briefs of both parties; GRANTS KAL's motion for

judgment as a matter of law and DENIES Mahalek's request

for prejudgment interest and costs.

I.

Four relatives of Muriel Kole, 2 passenger killed on KAL

Flight 007, brought wrongful death actions against KAL under

the Warsaw Convention. Kole's mother and sister brought an

action in the Southern District of New York before Judge

Motley ("Zicherman"). Kole's husband and brother

("Mahalek") brought separate actions in this Court.

Based on principles of collateral estoppel, this Court has

repeatedly followed the ruling of Judge Motley in Zicherman,

who ruled on several substantive issues prior to this Court

A3

doing so. See In Re Korean Air Lines Disaster of September

1, 1983, 807 F.Supp. 1073 (S.D.N.Y. 1992).

Because Judge Motley had ruled that non-dependent

relatives of a decedent could recover loss of society damages,

this Court allowed Mahalek's case to proceed to trial. The

jury awarded Mahalek $75,000 for the loss of society he

suffered as a result of the death of his sister on KAL Flight

007. The Court entered a judgment on the Mahalek verdict on

October 29, 1993.

I.

The Second Circuit has recently ruled on KAL's appeal of

Judge Motley's ruling in Zicherman. In Zicherman v. Korean

Airlines, Ltd, F.3d __, 1994 WL 685690 (2nd Cir. 1994),

the Second Circuit affirmed Motley's opinion in part, reversed

in part, and vacated in part. Most significantly, it held that

general maritime law, not DOHSA applied to the KAL crash.

1994 WL 685690 at *3. In terms of loss of society damages,

however, it held that "Zicherman [decedent's sister] and

Mahalek [decedent's mother] may recover loss of society

damages only if they were dependents of Kole at the time of

her death." 1994 685690 at *4. The appeals court vacated the

loss of society award to Mahalek (decedent's mother) because

she conceded at trial she was not dependent on her daughter.

As to Zicherman (decedent's sister}, the Court remanded to the

trial court for a determination as to whether she was dependent

on the decedent.

In the trial before this Court, Thomas Mahalek conceded

that he was not dependent on his sister for financial support.

Therefore, based on the Second Circuit's ruling in Zicherman,

this Court grants KAL's motion for judgment as a matter of

law.

In an attempt to avoid judgment as a matter of law,

Mahalek cites Sutton v. Earles, 26 F.3d 903, 917 (9th Cir.

1994) for the proposition that, in the Ninth Circuit, a plaintiff

A4

bringing a wrongful death action under general maritime law

need not show that he is dependent on a decedent to recover

loss of society damages. Id.

Sutton is distinguishable from the case at hand, however,

because it held only that parent plaintiffs could collect loss of

society damages without regard to dependency. Id. The Ninth

Circuit based this ruling in part on the fact that parents are

common beneficiaries of wrongful death statutes. Id. at 915.

This rationale does not apply to non-dependent siblings,

however. See, e.g., Evich v. Connelly, 759 F.2d 1432 (9th

Cir. 1985), cert. denied, 484 U.S. 914 (1987) (non-dependent

sibling may not bring wrongful death action under the Jones

Act or DOHSA).

Mahalek aiso argues that KAL's motion for judgment as a

matter of law should not be considered because KAL did not

make its motion at the close of the evidence as required by

Rule 50(a). However, KAL has provided transcripts that show

it moved for a "directed verdict." See Reply of Korean Air

Lines Co., Ltd. to Plaintiffs Supplemental Memorandum of

Points and Authorities in Opposition to Motion for Judgment

as a Matter of Law, filed October 20, 1994, Ex. A. Therefore,

this argument is without merit.

Additionally, Mahalek argues that KAL did not file its

motion for judgment as a matter of law not later than ten days

after entry of judgment as required by Rule 50(b). Judgment

was entered on October 29, 1993. KAL filed its motion on

November 12, 1993. When the period of time prescribed by

a rule is less than eleven days, intermediate Saturdays,

Sundays, and holidays are excluded in the computation.

Fed. R.Civ.P. 6(a) Under this computation, the motion was

timely file.

I.

Accordingly,

IT IS HEREBY ORDERED THAT:

1. KAL's motion for judgment as a matter of law is

GRANTED.

AS

2. Mahalek's motion for prejudgment interest and costs in

DENIED.

DATED: March 8, 1995

WILLIAM H. ORRICK

United States District Judge

A6

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE

WILLIAM H. ORRICK, SENIOR JUDGE

THOMAS L. MAHALEK,

INDIVIDUALLY

AND AS THE HEIR OF MURIEL KOLE

PLAINTIFF,

NO. C-83-

4381WHO

VS.

KOREAN AIRLINES, CO., LTD.,

DEFENDANT.

ee ee

SAN FRANCISCO, CALIFORNIA

MONDAY, OCTOBER 25, 1993

TUESDAY, OCTOBER 26, 1993

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFF: BELLI, BELLI, BROWN,MONZIONE

FABBRO & ZAKARIA

900 MONTGOMERY STREET

SAN FRANCISCO, CALIFORNIA 94133

BY: RICHARD E. BROWN, ESQ.

~ ——

A7

FOR DEFENDANT: CONDON & FORSYTH

1900 AVENUE OF THE STARS

SUITE 650

LOS ANGELES, CALIFORNIA 90067

BY: STEPHEN R. GINGER, ESQ.

GEORGE N. TOMPKINS, III ESQ

REPORTED BY: LAWRENCE J. WHITE, CSR, CP,

CM OFFICIAL REPORTER, USDC

COMPUTER-AIDED TRANSCRIPTION BY TURBOCAT

ASSOCIATED FEDERAL REPORTERS,

SAN FRANCISCO, CA. 94102

Pg. 114

I'LL EVER KNOW AT THE MOMENT.

MR. BROWN: I GUESS THE THREE IN

CONTENTION ARE THE FIRST THREE YOU READ. IF

I'M CORRECT IN UNDERSTANDING YOUR HONOR,

YOU SAID YOU WOULD USE THE PLAINTIFF'S

INSTRUCTION ON WRONGFUL DEATH, THE

DEFENDANT'S INSTRUCTION ON GRIEF AND

SORROW AND THE DEFENDANT'S INSTRUCTION ON

M®7TAL ANGUISH?

THE COURT: YES.

MR. BROWN: I DO HAVE SOME OBJECTIONS

TO THE USE OF THOSE TWO INSTRUCTIONS BY

DEFENDANT.

THE COURT: GET THEM SPECIFICALLY IN

WRITING AND I WILL DEAL WITH THEM.

MR. GINGER: YOUR HONOR, JUST TO

PROTECT OUR POSITION AND PRESERVE THE RIGHTS

A8

ON APPEAL, I HAVE TO STATE THE GROUNDS FOR

MY MOTION FOR DIRECTED VERDICT, AND I WOULD

APPRECIATE IT IF YOU WOULD GIVE A RULING. I

THINK IT’S THE SAME RULING YOU HAVE BEEN

GIVING ALL ALONG.

IN ANY EVENT, WE MOVE FOR DIRECTED

VERDICT ON THE GROUNDS THAT PLAINTIFF HAS NO

STANDING TO BRING THIS ACTION UNDER DOHSA;

THAT LOSS OF SOCIETY IS NOT RECOVERABLE

UNDER THE APPLICABLE LAW, WHICH WE SAY IS

DOHSA; THAT MENTAL ANGUISH AND GRIEF IS NOT

RECOVERABLE UNDER THE APPLICABLE LAW,

WHICH IS DOHSA, OR ANY FEDERAL COMMON LAW.

THERE IS INSUFFICIENT EVIDENCE TO LET

THE CASE GO TO THE JURY ON THE ISSUE OF LOSS

OF SOCIETY BECAUSE HE'S TESTIFIED THAT HE WAS

NOT FINANCIALLY DEPENDENT, AND WE SAY

Pg. 115

THAT UNDER THE LAW YOU HAVE TO BE

FINANCIALLY DEPENDENT TO GET ANYTHING.

ALSO THERE IS INSUFFICIENT EVIDENCE TO

LET THE CASE GO TO THE JURY UNDER YOUR

RULING THERE HAS TO BE A_ PHYSICAL

MANIFESTATION. I DON'T BELIEVE ANY OF THE

MATTERS THEY TESTIFIED TO CONSTITUTE A

PHYSICAL MANIFESTATION OR ACTUAL MENTAL OR

PHYSICAL INJURY.

THE COURT: THE MOTION FOR DIRECTED

VERDICT IS DENIED. COURT IS IN RECESS.

(TRIAL ADJOURNED)

A9

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THOMAS L. MAHALEK, individually NO. 83

and as the heir of MURIEL KOLE 4381 WHO

Plaintiff,

NOTICE OF

KOREAN AIR LINES, CO., LTD.,

et al.

)

)

)

)

)

vs. ) APPEAL

)

)

Defendants. )

)

NOTICE IS HEREBY GIVEN that plaintiff THOMAS

MAHALEK,, in the above-referenced case appeals to the Court

of Appeals, Ninth Circuit, from the Amended Judgment on

Jury Verdict filed March 9, 1995, and the order granting

defendant Korean Air Lines' Motion for Judgment as a Matter

of Law, filed March 9, 1995.

NOTICE IS FURTHER GIVEN THAT plaintiff requests

the Clerk of the above-entitled Court to prepare a Clerk's

transcript and designate all papers and records on file or

lodged with the Court in the above-entitled action.

DATED: March 21, 1995

BROWN, MONZIONE, FABBRO,

ZAKARIA & SCARLETT

BY:

RICHARD E. BROWN

Attorney for Plaintiff

THOMAS MAHALEK

Al0

APPENDIX E

Office of the Clerk

United States Court of Appeals for the Ninth Circuit

121 Spear Street, P.O. Box 193939

San Francisco, CA 94105-3939

March 28, 1995

U.S. Court of Appeals Docket Number: 95-15559

Lower Court Docket No.: CV-83-04381-WHO

Short Title: Mahalek v. Korean Air Lines Co.

Dear Counsel:

A copy of your notice of appeal/petition has been received in

the Clerk's office of the United States Court of Appeals for

the Ninth Circuit.

The U.S. Court of Appeals docket number shown above has

been assigned to this case. You must indicate this Court of

Appeal docket number when corresponding with this office

relative to your case. Please furnish this docket number

immediately to the court reporter if you place an order, or

have placed an order, for portions of the trial transcripts. The

court reporter will need this docket number when

THE DUE DATES FOR DESIGNATING AND FILING THE

REPORTER'S TRANSCRIPT IF APPLICABLE, FILING

THE PARTIES' BRIEFS AND OTHERWISE PERFECTING

THE APPEAL HAVE BEEN SET BY THE ENCLOSED

"TIME SCHEDULE ORDER", PURSUANT TO

APPLICABLE FRAP RULES. THESE DATES CAN BE

EXTENDED ONLY BY COURT ORDER. FAILURE OF

All

THE APPELLANT TO COMPLY WITH THE TIME

SCHEDULE ORDER WILL RESULT IN AUTOMATIC

DISMISSAL OF THE APPEAL.

The following information is being provided in an attempt to

answer the most frequently asked questions regarding the

appellate process. Please review this information very

carefully. For convenience, the term "Circuit Rules" will be

used for "Rules of the United States Court of Appeals for the

Ninth Circuit" and “FRAP" for "Federal Rules of Appellate

Procedure” will be used throughout this document.

Enclosed with this letter is an appellate processing schedule

along with a case processing checklist which may be attached

to your case file as an aid in monitoring case progress.

APPELLANTS/PETITIONERS WHO ARE FILING PRO SE

SHOULD REFER TO THE ACCOMPANYING

INFORMATION SHEET REGARDING THE FILING OF

INFORMAL BRIEFS.

Al2

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

AUG 9 1995

THOMAS L. MAHALEK, individually ) NO. 95-15559

and as the heir of MURIEL KOLE )

) REQUEST FOR

Appellant, ) VOLUNTARY

) DISMISSAL

vs.

KOREAN AIR LINES, CO., LTD.,

Respondent.

Se Oe ee ee ee”

Appellant THOMAS L. MAHALEK hereby moves for a

Voluntary Dismissal of the above-captioned appeal without

prejudice to reinstate upon disposition of the United States

Supreme Court Decision in Zicherman v. Korean Air Lines,

115 SC 1689, Docketed April 17,.1995.

Dated: August 8, 1995

BROWN, MONZIONE, FABBRO,

ZAKARIA & SCARLETT

BY:

RICHARD E. BROWN

Attorney for Plaintiff

THOMAS MAHALEK

Al3

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

SEP - 5 1995

THOMAS L. MAHALEK, individually ) NO. 95-15559

and as the heir of MURIEL KOLE )

) DC# CV-83-

Plaintiff/ Appellant ) 4381-WHO

) Northern

vs. ) California

) (San Francisco)

KOREAN AIR LINES, CO., LTD., )

)

Defendants/ Appellee. ) ORDER

)

Appellant's motion for voluntary dismissal of this appeal

without prejudice to reinstatement upon disposition of the

United States Supreme Court decision in Zicherman v. Korean

Air Lines, 115 S. Ct. 1689, docketed April 17, 1995 is

granted. The motion to reinstate must be filed within 28 days

after the Supreme Court disposition.

A certified copy of this order sent to the district court shall

act as and for the mandate of this court.

For the Court:

CATHY A. CATTERSON

Clerk of the Court

Wayne Anderson

Deputy Clerk

pro 8.28

THOMAS MAHALEK v. KOREAN AIR LINES CO.

Ltd *

U. S. District Court, Northern Div.

of California, No. C 83 4381 WHO

CERTIFICATE OF SERVICE

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

I hereby certify that a copy of the foregoing Petitioner,

Thomas Mahalek's Petition for Writ of Certiorari was mailed on

October 6 , 1995, with postage thereon fully prepaid to

be placed in the U.S. mail at San Francisco, California, to

all parties required to be served in said action by placing a

copy thereof, enclosed in a sealed envelope, addressed as

follows:

Stephen R. Ginger, Esquire George N. Tompkins, III, Esquire

CONDON & FORSYTH TOMPKINS, HARAKAS, ELSASSER

1900 Avenue of the Stars & TOMPKINS

Suite 650 Courthouse Square

Los Angeles, CA 90067 140 Grand Street

(310) 557-2030 White Plains, New York 10601

(914) 428-2525

W. Paul Needham, Esquire Juanita Madole, Esquire

NEEDHAM & WARREN SPEISER, KRAUSE, MADOLE & COOK

10 Liberty Square Two Park Plaza, Suite 1060

Boston, MA 02109 Irvine, CA 92714

(617) 482-0500 (714) 553-1421

ee 2, 8 ,,

RICHARD E. BROWN