Petition for Writ of Certiorari — Korean Air Lines Co. v. Forman
Supreme Court brief1996
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GPmE OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
>
KOREAN AIR LINES CO., LTD.,
Petitioner,
ERIC W. FORMAN,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
GEORGE N. TOMPKINS, JR.
ANDREW J. HARAKAS*
TOMPKINS, HARAKAS, ELSASSER
& TOMPKINS
Courthouse Square
140 Grand Street
White Plains, New York 10601
(914) 428-2525
Counsel for Petitioner
KOREAN AIR LINES Co., LTD.
* Counsel of Record
cm ON ART
QUESTIONS PRESENTED FOR REVIEW
While the appeal was pending in the court below, the Court
decided Zicherman v. Korean Air Lines, 116 S. Ct. 629
(1996), and held that (a) the types of recoverable compen-
satory damages in an action to which the Warsaw Conven-
tion* applies must be determined by reference to domestic
law and (b) the applicable domestic law, DOHSA**, allows
for the recovery of pecuniary damages only.
The appeal in the court below arises out of the same event
as involved in Zicherman. After directing the parties, at the
request of Petitioner KAL, to address the effect of Zicherman
on the pending appeal, the court below declined to decide
whether nonpecuniary pre-death pain and suffering damages
are recoverable under the Warsaw Convention or DOHSA
after Zicherman.
The questions presented for review are:
1. Whether the court below was required to apply, to a
pending but undecided appeal, the holding, rationale and prin-
ciple of the intervening decision of the Court in Zicherman,
so as to preclude an award of nonpecuniary pre-death pain
and suffering damages on the basis of the Warsaw Convention
alone?
2. Whether, in light of Zicherman, the pecuniary damages
allowed by DOHSA may be supplemented with nonpecuniary
damages for pre-death pain and suffering, on the basis of the
Warsaw Convention, general maritime law or state law?
He Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No.
876 (1934), reprinted in note following 49 U.S.C. § 40105.
_ Death on the High Seas Act, 46 U.S.C. App. § 761 et seg.
il
LIST OF ALL PARTIES AND RULE 29.1 LISTING
A. Petitioner
The Petitioner is KOREAN AIR LINES Co., LTD. (herein-
after “KAL”) who was the defendant-appellant/cross-appellee
in the Court of Appeals. KAL is a Korean corporation
engaged in the business of international transportation by air
of passengers, baggage and cargo. KAL is a member of The
Hanjin Group of Korea, which comprises companies under
common management direction. KAL’s investments in secu-
rities and/or affiliated companies consist of the following:
Air Cargo Terminal Co., Ltd.
Air Korea Co., Ltd.
Daehan Oil Pipeline Corporation
Government Bonds
Hana Bank
Hanil Bank
Hanjin Construction Co., Ltd.
Hanjin Data Communication
Hanjin Heavy Industry Co., Ltd.
Hanjin International Corp.
Hanjin Int’! Japan Co., Ltd.
Hanjin Investment Securities Co., Ltd.
Hanjin Shipping Co., Ltd.
Hyundai Oil Refinery Co., Ltd.
Korea Air Terminal Service Co., Ltd.
Korea Freight Transportation Co., Ltd.
Korea Investment Corporation
Korean French Banking Corporation
Korea Technology Development Co., Ltd.
Kyungki Bank, Ltd.
Peace Bank of Korea
Terminal One Management Inc.
The Company Fund
The Korea Economic Daily
a i i ee el ee
iii
B. Respondent
The Respondent is Eric W. Forman who was the plaintiff-
appellee/cross-appellant in the Court of Appeals.
iV
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ......----- i
LIST OF ALL PARTIES AND RULE 29.1 LISTING... ii
TABLE OF AUTHORITIES ......----++++ssseeerrereee Vil
OPINIONS BELOW ........----ssseeereeereressttt |
JURISDICTION. ........-ccccecceceescccsessccccesecsees 1
STATUTORY AND TREATY PROVISIONS
INVOLVED .........0cccccccccssccsccncccccccsooes 1
STATEMENT OF THE CASE.......-----+++++0eee00e 2
A. Nature of the Case ........-----eseeeereeeeees 2
B. Disposition Below ......----++-ssesssrrteee 2
1. The Rulings of the District Court ...... 2
2. The Appeal and the Intervening
Supreme Court Decision in Zicherman
v. Korean Air Lines ......--- Rukeeeawake- 3
3. The Post-Zicherman Supplemental
Brief in the Court Below ........--+---: 5
4. The Decision of the Court Below....... 5
5. The Post-Zicherman Decisions of Other
COMAUED coin cans cdcensenseseusseenesenes® 6
—-
REASONS FOR GRANTING THE PETITION
I.
II.
THE DECISION OF THE COURT BELOW IS
IN CONFLICT WITH THE COURT’S DECI-
SION IN ZICHERMAN, DECISIONS OF THE
COURT REQUIRING APPLICATION OF ITS
DECISIONS RETROACTIVELY TO PENDING
CASES AND THE COURT OF APPEALS FOR
SEeee INEST GROAN hiss. odeaieck nine Sc
A. The Court Below Has Upheld an Award of
Nonpecuniary Damages Even Though the
Legal Basis for the Award, Relied Upon
by the District Court, Has Expressly and
Directly Been Rejected by the Court in
WN hics cin ixcheeectiienk
B. The Court Below Was Obliged to Apply the
Intervening Supreme Court Decision in
Zicherman to the Pending PU ie ce kstaci
C. The Decision of the Court Below Is in Direct
Conflict With a Decision of the Court of
Appeals for the Ninth Circuit...............
CONSIDERATIONS OF FAIRNESS AND
PUBLIC CONFIDENCE IN THE JUDICIAL
REVIEW PROCESS MANDATE REVIEW
OF Se RMR ihctidhig eet cia a
A. The Court Below Improperly Applied the
“Reply Brief Waiver Rule” .................
1]
12
14
14
vi
PAGE
B. The Refusal of the Court Below to Apply
the Intervening Decision of the Court in
Zicherman Calls for an Exercise of the .
Court’s Supervisory Power............0 16
III. THE COURT BELOW HAS DECLINED
TO ADDRESS AN IMPORTANT QUESTION
OF FEDERAL LAW WHICH SHOULD BE
SERINE xi x29 scccnsnenieeted Veen re oS 17
MN carsiNnsdededipieadyehs mises 21
bhatt rN la
Vii
TABLE OF AUTHORITIES
Cases: PAGE
Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73 (1990) 18
Azzopardi v. Ocean Drilling & Exploration Co.,
742 F.2d 890 (Sth Cir. ee eR 4n, 18, 19, 21
Barbe v. Drummond, 507 F.2d 794 (1st Cir.
th daac CEES OPP oes AA GE ee 4n, 18, 19, 21
Beirn et al. v. Korean Air Lines, Nos. 83-4624,
83-4626 (E.D.N-Y. ie OS een ane 20
Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir. 1996),
amended on reh’g,__ F.3d __, 1996 WL 490375
oe els PO. COD conn ec ak ihe k ioe. passim
Bowden v. Korean Air Lines, 814 F. Supp. 592 (E.D.
Mich. 1993), rev’d sub nom. Bickel v. Korean Air
Lines, 83 F.3d 127 (6th Cir. 1996), amended on
reh’g,__ F.3d __, 1996 WL 490375 (6th Cir.
Pt Si SET diitertintinioe cot 3n, 7n, 8
Boys Markets, Inc. v. Retail Clerks Union, Local
PIDs Ow ee BOS CAPT cack osc ke, 12
Carducci v. Reagan, 714 F.2d 171 (D.C. Cir. 1983)... 15
Dugas v. Nat'l Aircraft Corp., 438 F.2d 1386
[Pee MPR ct 4n, 18, 19, 21
Federal Savings & Loan Ins. Corp. v. Haralson,
Dio Cee OTe Che CME BOOTY once sine occ no cnc 15
Forman v. Korean Air Lines, No. 83-3578, memo.
op. (D.D.C. June 6, 1995) (“Forman fr) ....4, 3, On, 16
Graham v. Milky Way Barge, Inc., 824 F.2d 376
RP A SEEN is vewciecieckescumeco cs 4n, 18, 19, 21
Vili
PAGE
Gray v. Lockheed, 880 F. Supp. 1559 (N.D. Ga.
Matyas cet or en aa 4n, 18, 19, 21
Gulf Offshore Co. y. Mobil Oil Corp., 453 U.S. 473
AOR sess irtsisep¥odiveseceec ee 17
Harper v. Virginia Dept. of Taxation, 509 U.S. 86
atid dogee te ohe ey res hia 1]
Herbert v. Nat’! Academy of Sciences, 974 F.2d 192
RE Wives G 15n
Hormel y. Helvering, 312 U.S. 552 Co | ORE 15, 16
In re Air Crash Disaster Near Honolulu, Hawaii on
Feb. 24, 1989, 783 F. Supp. 1261 (N.D. Cal.
diate pete Sh et a 4n, 18
In re Air Disaster Near Honolulu, Hawaii, on Feb. 24,
1989, 792 F. Supp. 1541 (N_D. Cal. a, eae 18
In re Inflight Explosion on TWA Aircraft Approaching
Athens, Greece on Apr. 2, 1986, 778 F. Supp. 625
(E.D.NLY. 1991), rev’d on other grounds, 975 F.2d
35 (2d Cir. 1992), cert. denied, 507 U:S. 1051
ica Aube ea Poet ote GN 3n
In re Korean Air Lines Disaster of Sept. 1, 1983,
No. 96-8013 (D.C. Cir. Amy. 135, 1906)......... 6, 20
In re Korean Air Lines Disaster of Sept. 1, 1983, MDL
No. 565, Nos. 83-3587 et al., memo. op. (D.D.C.
Apr. 8, 1993) (“In re KAL-DDC /”)....}, 2, 6n, 8n, 10n
In re Korean Air Lines Disaster of Sept. 1, i963,
F. Supp. __, 1996 WL 428519 (D.D.C. June 4,
1996) (“In re KAL-DDC IT”), interlocutory
appeal granted, No. 96-8013 (D.C. Cir.
WOR SR WE secs 6, 8, 13, 16, 20
ON I OE ALE tn MK. Ch dri ebed hs ia
ix
PAGE
James B. Beam Distilling Co. v. Georgia, 501 U.S.
AEE bila hacceive Sedu cn citacc hie cake ce, 11
Lebron v. Nat’! R.R. Passenger Corp., 115 S. Ct. 961
ERR asd sco kcis idee eee Se a 18
Maikovich v. Korean Air Lines, Nos. 94-5371,
sep ects od (OE TAR 10 OX BIRR ERPS ee no ea 5n
McAleer v. Smith, 791 F. Supp. 923 (D.R.I.
cg | ROR RARE ent doey AB Den atin ig 4n, 18, 19, 21
Oldham v. Korean Air Lines, Nos. 94-5321, 94-5338
ees Nat inky scien Pika Aiccicat bck ih 5n
Pescatore v. Pan Am World Airways, ___ F.3d __, 1996
WL 507165 (2d Cir. Sept. 9, 1996) ............... 10
Preston v. Frantz, 11 F.3d 357 (2d Cir.
Rea hss ech beniekesee be riie see 4n, 18, 19, 21
Rivers v. Roadway Express, 114 S. Ct. 1510 (1994)...11, 12
Rye v. U.S. Steel Min. Co., Inc., 856 F. Supp. 274
is Pe OO se Oi Sin cc ree ee, 4n, 18, 19, 21
Saavedra v. Korean Air Lines, 93 F.3d 547 (9th Cir.
ecto, OO EE Ee NOPE AE PODS OLE RD Ege aN passim
Saavedra v. Korean Air Lines, Nos. 84-9324 et seq.
(C.D. Cal. July 16, 1993), rev’d in part, 93 F.3d
ee AOU SMEs BOD vi nda Ch owed bess side e oi koleke va 3n
Singleton v. Wulff, 428 U.S. 106 (1976) ................ 15
Stevens v. Department of Treasury, 500 U.S. 1 (1991) 13
United States v. Atkinson, 297 U.S. 157 CSROED cckiuds 17
United States v. McKie, 73 F.3d 1149 (D.C. Cir.
SE eee rau ee beter ee ea te ee se, 1]
"wT
x
PAGE
United Transp. Union v. Dole, 797 F.2d 823 (10th Cir
I 5 6 0.0600500000u050dnednene bthubdansabdeastetun 15, 16
United States v. Williams, 504 U.S. 36 (1992)......... 18
U.S. Nat'l Bank of Oregon v. Independent Ins. Agents
of America, 508 U.S. 439 (1993) ................. 18
Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083
SROE Pina sdccdadadsadpectudsevbentdeabbdcssiahteuse 16
Zicherman v. Korean Air Lines, 116 S. Ct. 629
I aia i a a passim
Treaties, Statutes and Rules:
Convention for the Unification of Certain Rules
Relating to International Transportation by
Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876
(1934), reprinted in note following 49 U.S.C.
Dn ncendvaknhdckenuidsdenbabebesassdbhetacses passim
Death on the High Seas Act (“DOHSA”),
46 UBL. ABD. § TOE G8 BOB. ca ccresccccecccecess passim
Se erie Uh RUE 40h sedaneda¥on¥adeceudeseesesesavebaas 2n
DO ss Ee BEEN ach dconchcbstetedicddbcsbebivekcuscoses 2n
Se ils OF ME dbs xknbicescnycdabadachshacteucdunbaden 2n
OD Babin B BRP ME Do vac ccns ccnscpussctbescscccacvannece l
~~
Petitioner KOREAN AIR LINES Co., LTD. (hereinafter
“KAL”), respectfully requests that a writ of certiorari issue to
review the judgment and opinion of the United States Court
of Appeals for the District of Columbia Circuit entered on
May 21, 1996.
OPINIONS BELOW
The opinion of the Court of Appeals is officially reported
at 84 F.3d 446 (D.C. Cir. 1996) and is reproduced in the
Appendix to the Petition at A la-9a.' The opinions of the dis-
trict court in Jn re Korean Air Lines Disaster of Sept. 1, 1983,
MDL No. 565, Nos. 83-3587 et al. (D.D.C. Apr. 8, 1993) and
Forman v. Korean Air Lines, No. 83-3587 (D.D.C. June 6,
1995), are not officially reported but are reproduced in the
Appendix to the Petition at A §2a-55a and A 10a-32a, respec-
tively.
JURISDICTION
The judgment of the Court of Appeals was entered on May
21, 1996. A la. KAL’s timely petition for rehearing and sug-
gestion for rehearing en banc was denied by Order dated July
5, 1996. A 33a-36a. The jurisdiction of the Court is invoked
under 28 U.S.C. § 1254(1).
STATUTORY AND TREATY PROVISIONS INVOLVED
The applicable statute is the Death on the High Seas Act
(“DOHSA”), 46 U.S.C. App. § 761 ef seq. The applicable
treaty is the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929,
49 Stat. 3000, T.S. No. 876 (1934), reprinted in note follow-
ing 49 U.S.C. § 40105 (“Warsaw Convention”). The pertinent
provisions are set forth at A 56a-57a.
: References preceded by “A” refer to pages in the Appendix to
the Petition.
STATEMENT OF THE CASE
A. Nature of the Case
Decedent Evelyn Forman was a passenger on KAL flight
KE007 who was killed when the flight was shot down by
Soviet military aircraft on September 1, 1983. The death of
the decedent occurred on the high seas within the meaning of
DOHSA, during the course of international transportation by
air, within the meaning of the Warsaw Convention.’ The
respondent is Eric Forman, the husband of the decedent and
the Administrator of her estate, who sought damages in his
individual capacity and on behalf of decedent’s estate, parents
and siblings.
B. Disposition Below
1. The Rulings of the District Court
The district court denied a pre-trial motion of KAL for a
ruling that DOHSA does not permit recovery of any nonpe-
cuniary damages for loss of society, survivors’ grief and pre-
death pain and suffering of the deceased passengers.
Specifically, the district court held that nonpecuniary pre-
death pain and suffering damages are recoverable solely on
the basis of Article 17 of the Warsaw Convention’ as “damage
sustained”, regardless of the proscriptions of DOHSA. /n re
Korean Air Lines Disaster of Sept. 1, 1983, Nos. 83-3587
et al., memo. op. at 2 (D.D.C. Apr. 8, 1993) (“In re KAL-
DDC I”) (A 52a-5Sa).
At the conclusion of a damages only trial, the jury awarded
plaintiff/respondent pecuniary and nonpecuniary damages
‘ The jurisdiction of the district court was based on federal ques-
tion (28 U.S.C. § 1331), diversity of citizenship (28 U.S.C. § 1332) and
original admiralty and maritime jurisdiction (28 U.S.C. § 1333).
3
Article 17 of the Convention creates carrier liability for
“damage sustained” in the event of the death of a passenger. 49 Stat.
3018 (A 56a).
Mata AE t es Cliabe ED Se tie OP wes 0° te nett age Pitt Doll
totaling $1,277,300, which included $290,000 for loss of soci-
ety, $195,000 for survivor’s grief and $120,000 for pre-death
pain and suffering. In denying KAL’s post-trial motion for
judgment as a matter of law, the district court reaffirmed its
pre-trial decision permitting recovery of nonpecuniary dam-
ages for loss of society and pre-death pain and suffering of
the deceased passenger on the basis of the Warsaw Conven-
tion. Forman v. Korean Air Lines, No. 83-3578, memo. op. at
5-6, 11-14 (D.D.C. June 6, 1995) (“Forman I”) (A 15a-16a,
19a-21a). The district court, however, set aside the damage
awards for survivor’s grief as not recoverable as a matter of
law. Jd. at 14-17 (A 21a-24a).*
2. The Appeal and the Intervening Supreme Court
Decision in Zicherman vy. Korean Air Lines
KAL appealed the pre-trial and post-trial decisions of
the district court. On December 29, 1995, KAL filed its
opening brief on appeal and argued that nonpecuniary loss
of society damages were not recoverable under DOHSA and
the award for nonpecuniary pre-death pain and suffering
damages was not supported by sufficient evidence. KAL did
not argue in its opening brief on appeal the antecedent ques-
tion of whether nonpecuniary pre-death pain and suffering
damages are recoverable as a matter of law because, unlike
loss of society damages, all pre-Zicherman decisions uni-
formly allowed the recovery of nonpecuniary pre-death pain
and suffering damages on the basis of the Warsaw Conven-
tion’, general maritime law and/or state law.®
4 The district court also set aside the damage award for loss of
financial contributions, as based on speculative expert testimony. This
award was reinstated by the Court of Appeals below. A 6a-8a.
See, e.g., Bowden v. Korean Air Lines, 814 F. Supp. 592, 598
(E.D. Mich. 1993), rev'd sub nom. Bickel v. Korean Air Lines, 83 F.3d
127, 132 (6th Cir. 1996), amended on reh’g, __ F.3d _., 1996 WL
490375 (6th Cir. Aug. 29, 1996); Saavedra v. Korean Air Lines, Nos. 84-
9324 et seq. (C.D. Cal. July 16, 1993), rev'd in relevant part, 93 F.3d 547
(9th Cir. 1996); In re Inflight Explosion on TWA Aircraft Approaching
(footnote 6 appears on next page)
4
On January 16, 1996, while the appeal was pending in the
court below, the Court decided Zicherman v. Korean Air
Lines, 116 S. Ct. 629 (1996). The Court in Zicherman first
rejected the notion that any type of damages are recoverable
directly under Article 17 of the Warsaw Convention as “dam-
age sustained.” Zicherman, 116 S. Ct. at 632-636. The Court
explained that “damage sustained” in Article 17 refers to
“legally cognizable harm” and that courts are to determine
what harm is legally cognizable only by reference to the
applicable domestic law under the forum’s choice-of-law
rules. Jd. In Zicherman, as in this case, the applicable domes-
tic law is DOHSA. /d. at 635-36.
The Court next rejected the rationale and holding of the
Court of Appeals for the Second Circuit (from which the
Zicherman case emanated) that general maritime/federal com-
mon law is the proper domestic law to consider. Jd. The Court
explained that Article 17 of the Convention is merely a “pass-
through” provision that does not permit federal courts “to
develop some common-law rule—under cover of general
admiralty law or otherwise—that will supersede the normal
federal disposition” absent the Convention. /d. at 636. Thus,
federal courts are authorized only “to apply the law that
would govern in absence of the Warsaw Convention.” /d.
Since DOHSA applies to deaths on the high seas and permits
recovery of pecuniary damages only, the Court ruled that non-
Athens, Greece on Apr. 2, 1986, 778 F. Supp. 625, 637 (E.D.N.Y. 1991),
rev'd on other grounds, 975 F.2d 35 (2d Cir. 1992), cert. denied, 507 U.S.
1051 (1993); Jn re Air Crash Disaster Near Honolulu, Hawaii, on Feb.
24, 1989, 783 F. Supp. 1261, 1264 (N.D. Cal. 1992) (“Hawaii IT”).
& See, e.g., Preston v. Frantz, 11 F.3d 357, 358 (2d Cir. 1993);
Graham v. Milky Way Barge, Inc., 824 F.2d 376, 378 (Sth Cir. 1987);
Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (Sth
Cir. 1984); Barbe v. Drummond, 507 F.2d 794, 799 (ist Cir. 1974);
Dugas v. Nat'l Aircraft Corp., 438 F.2d 1386, 1389 (3d Cir. 1971); Gray
v. Lockheed, 880 F. Supp. 1559, 1569 (N.D. Ga. 1995); Rye v. U.S. Steel
Min. Co., Inc., 856 F. Supp. 274, 280 (E.D. Va. 1994); McAleer v. Smith,
791 F. Supp. 923, 927 (D.R.I. 1992).
fit Mp Anat Lalli edad el POP Bs Ayes PLE
Poe eee ee
pecuniary loss of society damages (the only specific damage
award involved in the appeal in Zicherman) were unavail-
able. Jd. at 636-37; 46 U.S.C. App. § 762 (A 57a). The Court
specifically noted that it did not consider “whether § 762 [of
DOHSA] contradicts the District Court’s allowance of pain
and suffering damages,” as the question was not before the
Court. Jd. at 636, n.4.
3. The Post-Zicherman Supplemental Brief in the
Court Below
On January 26, 1996, KAL moved the court below for per-
mission to submit a supplemental brief’ in the pending appeal
to address the recoverability of nonpecuniary pre-death pain
and suffering damages as a matter of law, in light of Zicher-
man. Plaintiff opposed the motion, arguing that KAL had
waived the argument by not addressing it in KAL’s opening
brief. The court below, apparently rejecting the waiver argu-
ment, granted KAL’s motion and expressly directed that KAL
address, in its reply brief, the significance of Zicherman
on the pending appeal. See Order (D.C. Cir. Feb. 22, 1996)
(A 50a-5la). The court below also directed plaintiff to
respond to KAL’s arguments in his cross-appeal reply brief.
Id. The effect of the Zicherman decision was fully briefed by
the parties in their respective reply briefs.
4. The Decision of the Court Below
On April 12, 1996, the court below heard oral argument of
the appeal and on May 21, 1996, rendered its decision. Plain-
tiff conceded, in light of Zicherman, and the court below
accepted, that nonpecuniary damages for loss of society and
survivor’s grief are not recoverable. A 2a-3a. The court
below, however, invoking the general rule that an appellate
y In this and all other appeals pending in the court below. See
Maikovich v. Korean Air Lines, Nos. 94-5371, 94-5382; Oldham v.
Korean Air Lines, Nos. 94-5321, 94-5338. These appeals had been held
in abeyance pending the Court’s decision in Zicherman. The court below
has now ordered that these cases be rebriefed.
6
court will not entertain an argument raised for the first time
in a reply brief (“reply brief waiver rule”), declined to address
KAL’s argument that the intervening decision in Zicherman
rendered the legal basis for the district court’s decision
invalid and that Zicherman precluded, as a matter of law, any
award of nonpecuniary damages for pre-death pain and suf-
fering. A 4a-Sa.
5. The Post-Zicherman Decisions of Other Courts
On April 29, 1996, while the appeal was pending in the
court below, but before decision, the Court of Appeals for the
Sixth Circuit rendered a decision in five KAL disaster pas-
senger cases and held that the intervening Zicherman decision
presented an “insuperable obstacle” to the recovery of any
nonpecuniary damages under DOHSA, including pre-death
pain and suffering damages. Bickel v. Korean Air Lines, 83
F.3d 127, 132 (6th Cir. 1996) (“Bickel I”).
On June 4, 1996, the district court below, in four KAL dis-
aster passenger cases awaiting trial, revisited its pre-Zicher-
man ruling that pre-death pain and suffering damages are
recoverable (which the court below has now affirmed)*® and
concluded that, in light of Zicherman, such damages are not
recoverable. /n re Korean Air Lines Disaster of Sept. 1, 1983,
F. Supp. , 1996 WL 428519, at *5 (D.D.C. June 4,
1996) (“In re KAL-DDC IT”) (A 45a-46a). On August 15,
1996, the court below granted plaintiffs’ petition for inter-
locutory review of this revised district court decision. /n re
Korean Air Lines Disaster of Sept. 1, 1983, No. 96-8013
(D.C. Cir. Aug. 15, 1996).
On August 2, 1996, the Court of Appeals for the Ninth Cir-
cuit rendered a decision in two KAL disaster passenger cases
and held that, in light of Zicherman, nonpecuniary damages
for pre-death pain and suffering are not recoverable under
DOHSA or otherwise. Saavedra v. Korean Air Lines, 93 F.3d
8 See In re KAL-DDC I, memo. op. at 2 (A 52a-55a).
7
_
547 (9th Cir. 1996). A petition for rehearing and suggestion
for rehearing en banc was denied on September 9, 1996.
On August 29, 1996, a majority of the panel of the Sixth
Circuit Court of Appeals, which had decided Bickel I, granted
plaintiffs’ rehearing petition and, reversing itself, now
declined to address the argument that the intervening Zicher-
man decision rendered invalid the legal basis for the district
court’s? award of nonpecuniary pre-death pain and suffering
damages. Bickel v. Korean Air Lines, 83 F.3d 127, 132 (6th
Cir. 1996), amended on reh’g, __ F.3d __, 1996 WL 490375
(6th Cir. Aug. 29, 1996) (“Bickel II”). Circuit Judge
Batchelder, the author of the unanimous Bickel I opinion, dis-
sented. Bickel I], 1996 WL 490375, at *6-8 (Batchelder, J.
dissenting). KAL’s suggestion for rehearing en banc of Bickel
I] is pending.
REASONS FOR GRANTING THE PETITION
Since the Court’s decision in Zicherman, the lower courts
have reached differing and conflicting results as to the duty
to apply the decision, rationale and principle of Zicherman to
cases on appeal and awaiting trial and as to the effect of
Zicherman on the recoverability of nonpecuniary pre-death
pain and suffering damages where DOHSA applies.
The court below, after directing KAL and respondent to
address the recoverability of nonpecuniary pre-death pain and
suffering damages in light of Zicherman in their reply briefs
(A 50a), then declined to “decide whether pre-death pain and
suffering damages may be recovered after Zicherman”, invok-
ing the reply brief waiver rule. A 5a. The court below thus
upheld the district court's award of nonpecuniary pre-death
pain and suffering damages solely on the basis of Article 17
of the Warsaw Convention.
’ See Bowden, 814 F. Supp. at 598 (allowing recovery of pre-
death pain and suffering damages on the basis of Article 17).
The Court of Appeals for the Sixth Circuit, in Bickel /,
allowed the parties to file post-Zicherman supplemental briefs
to address the effect of Zicherman on the recoverability of
nonpecuniary pre-death pain and suffering damages. On the
basis of the supplemental briefs, a unanimous court in Bickel
I held that Zicherman posed an “insuperable obstacle” to the
recovery of such damages. Bickel J, 83 F.3d at 132. On
rehearing, a majority of the panel (2-1), invoking the reply
brief waiver rule, held that it now would decline to decide the
issue because Zicherman “neither added to, nor made any
changes in, the law regarding the availability of nonpecuniary
damages under DOHSA.” Bickel I], 1996 WL 490375, at *2.
Thus, the panel upheld the award of nonpecuniary pre-death
pain and suffering damages solely on the basis of Article 17
of the Warsaw Convention. /d.; see Bowden, 814 F. Supp. at
598.
The Court of Appeals for the Ninth Circuit, in Saavedra,
after receiving post-Zicherman supplemental briefs, rejected
the waiver argument and held that it was “compelled” to
apply the intervening decision of the Court in Zicherman and
that Zicherman “effectively forecloses” any claims for non-
pecuniary pre-death pain and suffering damages where
DOHSA applies. Saavedra, 93 F.3d at 550-554.
Subsequent to the decision of the Court of Appeals below,
the district court below addressed the effect of Zicherman in
several other KAL disaster passenger cases still awaiting trial.
The district court repudiated its earlier ruling, which formed
the basis of the ruling that the Court of Appeals below has
affirmed", and concluded that, in light of Zicherman, non-
pecuniary damages for pre-death pain and suffering no longer
are available. Jn re KAL-DDC II, 1996 WL 428519, at *5 (A
45a-46a).
10 Forman I, memo. op. at 5-6 (A 15a-16a); In re KAL-DDC I,
memo. op. at 2 (A 53a).
LAB iss AEX er halo
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9
Certiorari is appropriate to resolve the conflict created by
the post-Zicherman decisions in the lower courts and to reaf-
firm the principle that an intervening decision of the Court
interpreting a treaty and a statute is required to be applied by
lower courts in all pending cases, particularly those arising
out of the same event as involved in the Zicherman case. Fur-
ther, the Court should grant the Petition to clarify the scope
of the principles enunciated in Zicherman as to the recover-
ability of nonpecuniary damages under the Warsaw Conven-
tion and DOHSA in the remaining cases arising out of this
disaster. Certiorari at this time will lead to the orderly and
timely conclusion of this litigation and will provide much
needed guidance to the lower courts as to the exclusivity of
the pecuniary damage standard of DOHSA.
I
THE DECISION OF THE COURT BELOW IS
IN CONFLICT WITH THE COURT’S DECISION
IN ZICHERMAN, DECISIONS OF THE COURT
REQUIRING APPLICATION OF ITS DECISIONS
RETROACTIVELY TO PENDING CASES AND THE
COURT OF APPEALS FOR THE NINTH CIRCUIT
A. The Court Below Has Upheld an Award of Nonpecu-
niary Damages Even Though the Legal Basis for the
Award, Relied Upon by the District Court, Has
Expressly and Directly Been Rejected by the Court in
Zicherman
The interpretation of the Warsaw Convention by the Court
in Zicherman is clear and direct: the Convention acts as
“nothing more than a pass-through, authorizing [the courts] to
apply the [damage] law that would govern in absence of the
Warsaw Convention.” 116 S. Ct. at 636. In rejecting the the-
ory that damages are recoverable directly on the basis of the
Convention, the Court in Zicherman eliminated the sole legal
basis upon which the district court in this case had allowed
10
the recovery of all nonpecuniary damages, including pre-
death pain and suffering damages. The decision of the Court
of Appeals below, affirming the district court’s allowance of
nonpecuniary pre-death pain and suffering damages on the
basis of the Warsaw Convention, cannot be squared with
Zicherman. When the holding of the district court, affirmed
by the Court of Appeals below, is compared with the holding
of the Court in Zicherman, the conflict is clear:
District Court Ruling:
Nonpecuniary pre-death pain
and suffering damages are
within the meaning of “dam-
age sustained” and, there-
fore, recoverable directly
on the basis of Article 17 of
the Warsaw Convention. For-
Zicherman Ruling:
“Damage sustained” in Arti-
cle 17 means “legally cog-
nizable harm” as defined by
the applicable domestic law.
Therefore, no damages are
recoverable directly on the
basis of Article 17 of the
Convention. 116 S. Ct. at
632-35, 637.
man I, memo. op. at 5-6 (A
15a-16a); Jn re KAL-DDC I,
memo. op. at 2 (A 53a).
The court below was required by Zicherman to find a
domestic law basis for upholding the award of nonpecuniary
pre-death pain and suffering damages, because Zicherman
prohibits the award of any damages based solely on the War-
saw Convention. Zicherman, 116 S. Ct. at 635-637; Saavedra,
93 F.3d at 553-554. Zicherman obligated the court below to
address the question whether nonpecuniary pre-death pain and
suffering damages are recoverable under DOHSA, the appli-
cable domestic law in this case. See Pescatore v. Pan Am
World Airways, ___ F.3d ___, 1996 WL 507165 (2d Cir. Sept.
9, 1996); Saavedra, 93 F.3d at 553-554. In declining to
address this question, the court below has erred and has let
stand an award of damages based on a legal theory expressly
rejected by the Court in Zicherman.
11
B. The Court Below Was Obliged to Apply the Inter-
vening Supreme Court Decision in Zicherman to the
Pending Appeal
The decision of the court below is in direct conflict with
the strict rule that an appellate court has a “duty” to apply
retroactively intervening decisions of the Court interpreting
a statute or treaty to all cases still open to direct review.
Rivers v. Roadway Express, 114 S. Ct. 1510, 1519 (1994);
Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 96 (1993);
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540-
545 (1991). The court below had no authority or discretion to
decline to apply the decision, direction and principle of
Zicherman interpreting the Warsaw Convention and DOHSA
to the pending appeal. Once the Court has spoken as to the
proper interpretation of a statute or treaty,
it is the duty of other courts to respect that understand-
ing of the governing rule of law. A judicial construction
of a statute [or treaty] is an authoritative statement of
what the statute [or treaty] meant before as well as after
the decision of the case giving rise to that construction.
Rivers, 114 S. Ct. at 1519 (emphasis added). See Harper, 509
U.S. at 96 (“When this Court applies a rule of federal law to
the parties before it, that rule is the controlling interpretation
of federal law and must be given full retroactive effect in all
cases still open on direct review and as to all events, regard-
less of whether such events predate or postdate the announced
rule”); see also Beam, 501 U.S. at 540-545, 549; United
States v. McKie, 73 F.3d 1149, 1152-53 (D.C. Cir. 1996).
While this case was open on direct review in the court
below, the Court in Zicherman rendered a binding judicial
construction of the Warsaw Convention and DOHSA. Nev-
ertheless, the court below declined to apply the Court’s con-
struction to the availability of nonpecuniary pre-death pain
and suffering damages in this case. The court sought to justify
its decision declining to “decide whether pre-death pain and
12
suffering damages may be recovered after Zicherman” by
invoking the “reply brief waiver rule”. A 4a-5a. Invocation of
this rule cannot justify the refusal to apply the construction of
the Warsaw Coavention and DOHSA rendered by the Court
while this case was open on direct review. “When this Court
construes a Statute, it is explaining its understanding of what
the statute has meant continuously since the date when it
became law.” Rivers, 114 S. Ct. at 1521, n.12; Boys Markets,
Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 256
(1970) (Black, J., dissenting). The court below had no author-
ity to disregard the Court’s intervening interpretation of the
Warsaw Convention and DOHSA when deciding the case
pending on appeal. /d.
The Sixth Circuit in Bickel J and the Ninth Circuit in
Saavedra properly “determined the effect of the Zicherman
decision on the district courts’ award of nonpecuniary
damages” in the cases pending on appeal in those courts.
Saavedra, 93 F.3d at 550; Bickel I, 83 F.3d at 131-32. While
the court in Bickel ] followed the “path laid out” in Zicher-
man, the majority in Bickel IJ, on rehearing, has departed
from the clear path of Zicherman and has embarked upon the
incorrect path charted by the court below. Neither the “reply
waiver brief” rule nor any other procedural rule can properly
be invoked to thwart the clear direction of the Court in
Zicherman as to the meaning and effect of the Warsaw Con-
vention and DOHSA.
Certiorari is required to ensure conformity with the hold-
ing, direction and principle of the intervening decision of the
Court in Zicherman.
C. The Decision of the Court Below Is in Direct Conflict
With a Decision of the Court of Appeals for the Ninth
Circuit
Certiorari also is required to resolve the direct conflict with
the decision of the Ninth Circuit properly applying and giv-
ing effect to Zicherman in pending cases arising out of the
13
same event as involved in Zicherman and in this case. In
Saavedra v. Korean Air Lines, 93 F.3d 547, 550-554 (9th Cir.
1996), the Court of Appeals for the Ninth Circuit recognized
that Zicherman “squarely rejected” the view that damages are
available directly under the Convention. The court found that
the question whether nonpecuniary pre-death pain and suf-
fering damages are recoverable in the KAL disaster passen-
ger cases, therefore, must be determined by reference to
domestic law (DOHSA). Jd. The Saavedra court concluded,
upon the basis of Zicherman, that DOHSA “simply will not
brook pain and suffering relief.” Saavedra, 93 F.3d at 553.
The error of the court below has now been replicated by the
Court of Appeals for the Sixth Circuit which, on rehearing (2-
1), reversed its prior unanimous decision that nonpecuniary
pre-death pain and suffering damages are not recoverable in
light of Zicherman, declined to address the effect of Zicher-
man on the pending appeals and thereby let stand awards of
such damages based solely on Article 17 of the Warsaw Con-
vention. Bickel I], 1996 WL 490375, at *1-2; see Stevens v.
Department of Treasury, 500 U.S. 1, 5-8 (1991) (granting cer-
tiorari to address clear misreading of applicable and important
federal statute).
The plain error of the court below is further compounded
by the fact that the district court, whose decision the Court of
Appeals below has affirmed, has since concluded, in KAL
disaster passenger cases still pending and awaiting trial in the
district court, that recovery of nonpecuniary pre-death pain
and suffering damages is precluded by Zicherman:
[I]t appears to this Court that with Zicherman, the
Supreme Court has held that DOHSA provides the exclu-
sive remedy for damages which cannot be supplemented
with general maritime principles. .
In re KAL-DDC II, 1996 WL 428519, at *5 (A 46a).
| -
ja
Certiorari is required to bring the decision of the court
below in line with the decision, direction and principle of the
Court in Zicherman and to resolve the conflict created with
the Ninth Circuit in Saavedra.
CONSIDERATIONS OF FAIRNESS AND PUBLIC
CONFIDENCE IN THE JUDICIAL REVIEW PROCESS
MANDATE REVIEW BY THE COURT
Immediately after the Court decided Zicherman, KAL
sought permission in the court below, in the Sixth Circuit and
in the Ninth Circuit, to file a supplemental brief addressing
the effect of Zicherman on the recoverability of nonpecuniary
pre-death pain and suffering damages in the cases still open
on direct review. Each court granted KAL’s request, over the
objections of the plaintiffs based on waiver, and each court
directed the parties to address the effect of Zicherman on the
recoverability of nonpecuniary pre-death pain and suffering
damages in the pending appeals.
However, each court came to a different conclusion. The
Ninth Circuit addressed and decided the question, the court
below declined to decide the question, and the Sixth Circuit
first decided the question but then, on rehearing, decided not
to decide the question.
In view of these conflicting results, in cases all arising from
the same event and all purporting to apply the same law, the
preservation of the integrity of the judicial process mandates
‘review by the Court of the decision of the court below.
A. The Court Below Improperly Applied the “Reply
Brief Waiver Rule”
The court below initially recognized its duty to address the
effect of the intervening decision of Zicherman on the recov-
erability of nonpecuniary pre-death pain and suffering dam-
on siren OB ltt her Tn A nit Ea cathe APE AE UD pecan et a
15
ages when the court granted KAL’s post-Zicherman request to
file a supplemental brief and expressly directed KAL and
respondent to address the significance of Zicherman in their
respective reply briefs. See Order dated Feb. 22, 1996 (A 50a-
51a). However, the court below then declined to decide the
effect of Zicherman by invoking the “reply brief waiver rule”
and, as a result, left standing an award of damages on a basis
clearly proscribed by the Court in Zicherman. This is mani-
festly unjust.
“Rules of practice and procedure are devised to promote the
ends of justice, not to defeat them.” Hormel v. Helvering, 312
U.S. 552, 557 (1941). Like any general rule of procedure,
waiver should not be applied where its underlying justifica-
tions are absent. See Singleton v. Wulff, 428 U.S. 106, 114
(1976); Hormel, 312 U.S. at 557-58: Federal Savings & Loan
Ins. Corp. v. Haralson, 813 F.2d 370, 377, n.3 (11th Cir.
1987); United Transp. Union v. Dole, 797 F.2d 823, 827-28
(10th Cir. 1986).
Application of the “reply brief waiver rule” in this case
does not advance or serve any purpose of the rule.'' In no
sense could respondent argue, nor did he argue, that he was
ambushed or unable to respond to KAL’s arguments. Respon-
dent advanced all arguments relevant to the issue before deci-
sion. The court below had the benefit of the opposing views
of the respondent. The reply briefs did not consist of mere
assertions, with no discussion of case law or legislative his-
tory supporting the respective views of the parties. See Car-
ducci v. Reagan, 714 F.2d 171, 176 (D.C. Cir. 1983). KAL’s
reply brief argument alone consisted of a 12 page discussion
of the relevant case law and statutes.
a The purpose of the “reply brief waiver rule” is to prevent: (1)
unfairness to an appellee who is unable to respond to an argument raised
for the first time in a reply brief, and (2) an ill-advised opinion on the
legal issue raised, because the Court has not had the benefit of an oppos-
ing view. Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 196 (D.C.
Cir. 1992).
16
“Orderly rules of procedure do not require sacrifice of the
rules of fundamental justice.” Hormel, 312 U.S. at 557. The
result of the decision of the court below is to let stand an
erroneous decision of the district court, based on a legal anal-
ysis rejected by the intervening decision of the Court in
Zicherman. Even the district court has since rejected its prior
legal analysis, in other pending cases, on the basis of Zicher-
man. See In re KAL-DDC I1, 1996 WL 428519, at *5 (A 45a-
46a). “Thus viewed, this is exactly the type of case where
application of the general practice would defeat rather than
promote the ends of justice. . . .” Hormel, 312 U.S. at 560;
Bickel I], 1996 WL 490375, at *6-8 (Batchelder, J. dissent-
ing).
As Circuit Judge Batchelder stated, in dissenting from the
majority decision on rehearing in Bickel II:
[T]he majority rests its judgment not even on the shift-
ing sands of its understandable desire to do equity in
these cases. Rather, the majority constructs this judgment
“upstairs above a vacant lot.”
Bickel 11, 1996 WL 490375, at *8 (Batchelder, J. dissenting).
B. The Refusal of the Court Below to Apply the Inter-
vening Decision of the Court in Zicherman Calls for
an Exercise of the Court’s Supervisory Power
The post-Zicherman argument advanced by KAL involved
an important matter of treaty and statutory interpretation, sub-
ject to de novo review in the pending appeal. After Zicher-
man, the decision of the district court was patently incorrect
and based on an improper interpretation of the Warsaw Con-
vention and DOHSA. The court below was required to review
and correct the district court’s misinterpretation of the Con-
vention and DOHSA, in light of Zicherman, as a matter of the
proper administration of federal law. See Virginia Bankshares,
Inc. v. Sandberg, 501 U.S. 1083, 1099, n.8 (1991); Dole, 797
F.2d at 828.
b)
—_— ow —_—
ri 7. ~~, <Saerer - = ———
17
Moreover, principles of fairness required the application of
Zicherman to the pending appeal to decide whether nonpe-
cuniary pre-death pain and suffering damages are recoverable
in the pending case arising out of the same event as involved
in Zicherman. The result of the decision of the court below,
refusing to even consider the effect of Zicherman, is that
respondent has recovered a windfall award and KAL must pay
millions of dollars in nonpecuniary damages"? which are
insupportable as a matter of law. See Gulf Offshore Co. y.
Mobil Oil Corp., 453 U.S. 473, 486, n.16 (198] ); Bickel 11,
1996 WL 490375, at *8 (Batchelder, J.. dissenting). If Zicher-
man had been decided before briefing in the court below, the
argument would have been addressed by KAL in the opening
brief. The court below now penalizes KAL for advancing an
argument not only made viable, but required, by the inter-
vening Zicherman decision.
There now have been three post-Zicherman Circuit Court
decisions in cases arising out of the KAL disaster, resulting in
three different conclusions as to the effect and meaning of the
intervening decision of the Court in Zicherman on the pend-
ing appeals. Considerations of fairness. judicial integrity, and
the public’s perception of judicial proceedings, require review
by the Court of the decision of the court beiow. See United
States v. Atkinson, 297 U.S. 157, 160 (1936).
Ill
THE COURT BELOW HAS DECLINED TO ADDRESS
AN IMPORTANT QUESTION OF FEDERAL LAW
WHICH SHOULD BE SETTLED
The argument that nonpecuniary pre-death pain and suf-
fering damages are not recoverable in light of Zicherman was
12
The 16 awards for pre-death pain and suffering damages in the
pending cases arising out of the KAL disaster range from $0 to $1.35
million and total $5,165,000, excluding prejudgment interest.
18
antecedent to and ultimately dispositive of whether the award
in this case was supported by sufficient evidence. While the
court below declined to address this antecedent legal argu-
ment, in light of the intervening decision of the Court in
Zicherman, the Court has the authority to do so at this time.
See Lebron v. Nat’l R.R. Passenger Corp., 115 S. Ct. 961,
965-66 (1995); U.S. Nat’l Bank of Oregon v. Independent Ins.
Agents of America, 508 U.S. 439, 445-47 (1993); United
States v. Williams, 504 U.S. 36, 40-46 (1992); Arcadia, Ohio
v. Ohio Power Co., 498 U.S. 73, 77 (1990).
The question of the preclusive effect of Zicherman and
DOHSA on the recoverability of nonpecuniary pre-death pain
and suffering damages involves an important question of fed-
eral law, present in each of the pending KAL disaster cases"’,
and arises in almost every death case occurring on the high
seas, in both an aviation and non-aviation context. Certiorari
should be granted in this case so that the Court may resolve
the conflict that has now developed and to provide an early
and definitive guide for the lower courts to avoid further
inconsistent results in this and other litigation involving
DOHSA.
Before Zicherman, all lower courts allowed § 762 of
DOHSA to be supplemented with nonpecuniary pre-death
pain and suffering damages under either the Convention, state
law or general maritime law or a combination thereof. See
supra notes 5 & 6; A 57a. In the only pre-Zicherman case to
preclude an award of nonpecuniary pre-death pain and suf-
fering damages in a Warsaw Convention case involving
DOHSA, the district court held that such damages neverthe-
less were recoverable on the basis of the Convention alone.
Hawaii I], 783 F. Supp. at 1264-65; Jn re Air Disaster Near
Honolulu, Hawaii, on Feb. 24, 1989, 792 F. Supp. 1541, 1546
(N.D. Cal. 1990). This was the same legal theory relied upon
by the district court below in allowing the award in this case.
13
Twenty-five (25) cases are pending on appeal or awaiting trial
in the district courts.
19
This theory has now been rejected and rendered invalid by the
Court in Zicherman.
Although the recoverability of loss of society damages was
the only issue directly addressed in Zicherman, the post-
Zicherman courts that have addressed the recoverability of
pre-death pain and suffering damages, in light of the inter-
vening Zicherman decision, have concluded that the reason-
ing of Zicherman forecloses recovery of any nonpecuniary
damages under DOHSA, including pre-death pain and suf-
fering damages. Zicherman made what was once a nonviable
argument, viable and controlling.
It is significant that the two Circuit Courts of Appeals that
have directly addressed the effect of Zicherman have con-
cluded that such damages are not recoverable, despite earlier
contrary holdings of the First, Second, Third and Fifth Cir-
cuits and numerous district courts. See supra note 6. The
Sixth Circuit originally stated in Bickel J:
Despite the fact that the Zicherman Court was not asked
to address the propriety of allowing a pain and suffering
award, we think the principle of Zicherman constitutes
an insuperable obstacle to an award of pain and suffer-
ing damages—clearly non-pecuniary damages—in these
cases.
Bickel I, 83 F.3d at 132 (emphasis added). The majority in
Bickel II, reversing itself on rehearing, offered no explanation
as to how Zicherman could pose an “insuperable obstacle” in
April, but that in August Zicherman “neither added to, nor
made any changes in the law regarding the availability of
nonpecuniary damages under DOHSA.” Bickel IJ, 1996 WL
490375, at *2.
Similarly, the Ninth Circuit in Saavedra v. Korean Air
Lines, held
that the Supreme Court’s reasoning in Zicherman,
although directly dealing only with a claim for loss of
20
society, effectively forecloses any claims under Ameri-
can law for nonpecuniary damages, including compen-
sation for the grief of the survivors, and the pre-death
pain and suffering of the victims.
93 F.3d at 550-551; see In re KAL-DDC II, 1996 WL 428519,
at *5 (A 45a-46a).
As succinctly explained by the dissent in Bickel I, Zicher-
man “made it crystal clear that where DOHSA governs, it
governs exclusively”:
Zicherman, it is true, does not directly address the pro-
priety of pre-death pain and suffering damages. But the
only plausible reading of that case is that such damages,
because they are not pecuniary damages, are not recov-
erable. See Saavedra, 1996 WL 431734, at *6.
Bickel II, 1996 WL 490375, at *7-8 (Batchelder, J. dissent-
ing).
Pending in the court below are three further appeals, which
were fully briefed prior to Zicherman, but held in abeyance
awaiting the decision in Zicherman. The court below now has
ordered that those appeals be rebriefed, apparently in light of
Zicherman. Also pending in the court below is an interlocu-
tory appeal from the district court’s post-Zicherman decision
rejecting its prior decision allowing the recovery of non-
pecuniary pre-death pain and suffering damages on the basis
of the Convention alone. Jn re Korean Air Lines Disaster of
Sept. 1, 1983, No. 96-8013 (D.C. Cir. Aug. 15, 1996) (grant-
ing interlocutory review).
In addition to the appeals pending in the court below, there
are three KAL disaster cases awaiting trial in the Eastern Dis-
trict of New York, where the district court has held, post-
Zicherman, that nonpecuniary pre-death pain and suffering
damages are recoverable under DOHSA and two cases are
mending in the Southern District of New York. Beirn et ai. v.
Korean Air Lines, Nos. 83-4624, 83-4626 (E.D.N.Y. Aug. 28,
21
1996) (Platt, J.). Finally, there are four KAL disaster cases
awaiting trial in the Central District of California where the
district courts, pursuant to Zicherman and Saavedra, have
dismissed all claims for nonpecuniary pre-death pain and
suffering damages.
The Court should grant certiorari to resolve the inconsistent
and conflicting rulings present, not only in the KAL disaster
litigation, but also the conflict which now exists between the
Ninth Circuit and the decisions of the First, Second, Third and
Fifth Circuits (see supra note 6) as to the recoverability of
nonpecuniary pre-death pain and suffering damages under
DOHSA.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Cer-
tiorari should be granted in all respects.
Dated: October 3, 1996
Respectfully submitted,
George N. Tompkins, Jr.
Andrew J. Harakas*
TOMPKINS, HARAKAS,
ELSASSER & TOMPKINS
Courthouse Square
140 Grand Street
Of Counsel: White Plains, New York 10601
JOSEPH F. BERRAFAT] (914) 428-2525
Attorneys for Petitioner
KOREAN AIR LINES Co..
LTD.
* Counsel of Record
APPENDIX
~ oe Reese Se ee eS ee ee _ aw as ee
INDEX TO APPENDIX
PAGE
Opinion of the Court of Appeals for the District
of Columbia Circuit, dated May 21, 1996......... la
Memorandum Opinion and Order of the District
Court for the District of Columbia (Aubrey E.
Robinson, Jr.), granting in part and denying
in part, KAL’s Motion for Judgment as a Matter
OF E.WW, THOS TUES G, TOPS okie cece vcasnvevesesccese 10a
Order on Rehearing, filed July 5, 1996................. 33a
Order on Suggestion for Rehearing in Banc, filed
Pe ik WP diate pases Mea beme bNTE aeonae axenasece 35a
Memorandum Opinion and Order of the District
Court for the District of Columbia (Aubrey E.
Robinson, Jr.), filed June 4, 1996, as amended
wy Order dated July 1, 1996 ......0ccsenccccncscess 37a
Order of the Court of Appeals for the District of
Columbia Circuit, filed February 22, 1996........ 50a
Memorandum Opinion of the District Court for the
District of Columbia (Aubrey E. Robinson, Jr.),
PEN CEE Wig Rc adie kn uckilba bunsae ees ch cwewk sas 52a
Relevant Provisions of the Warsaw Convention
PE Sin vac RRA ecb ek ae whi RG one Cike nce cans 56a
UE Bers kn 0n.decscscinen budbanisavnels cece biineis 56a
Relevant Provisions of the Death on the High Seas Act,
46 U.S.C. App. § 761 et seq.
ea, UNE Vickdbindrubidcchbeteykaccate 57a
OP NF ak SU Wh POE oi icdvavdksaneveswactcetsenaa 57a
——
la
Notice: This opinion is subject to formal revision before publication in
the Federal Reporter or U.S.App.D.C. Reports. Users are requested to
notify the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
Gnited States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 1996 Decided May 21, 1996
No. 95-5230
Eric W. Forman,
APPELLEE/CROSS-APPELLANT
Vv.
Korean Arr Lines Co., Ltp.
APPELLANT/CROSS-APPELLEE
Consolidated with
95-5231
Appeals from the United States District Court
for the District of Columbia
(83ev3587)
Andrew J. Harakas argued the cause and filed the briefs
for appellant/cross-appellee Korean Air Lines Co., Ltd.
George N. Tompkins, Jr. entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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2a
Juanita M. Madole argued the cause and filed the briefs
for appellee/cross-appellant Eric W. Forman. George E.
fuarred’ entered an appearance.
Before: SitpermMan, WILLIAMS, and Rocers, Circuit Judges.
Opinion for the Court filed by Circuit Judge SiLBERMAN.
SILBERMAN, Circuit Judge: Korean Air Lines and Eric
Forman both appeal aspects of the judgment entered by the
district court after trial on damages arising out of the down-
ing of KAL Flight KE007. We reject KAL’s claims that the
evidence did not support the jury's award for Evelyn For-
man’s pre-death pain and suffering and that the district court
erred in awarding prejudgment interest at the prime rate.
Forman concedes that the Supreme Court’s decision in Zich-
erman v. Korean Air Lines, 116 S. Ct. 629 (1996), precludes
the recovery of loss of society damages in a case brought
under the Warsaw Convention, so we reverse the judgment
below as to those damages. And, we reverse the district
court’s determination that Forman offered insufficient evi-
dence as to Evelyn’s future earnings and contributions to him,
and remand with instructions to reinstate the jury’s verdict as
to those damages.
I.
Evelyn Forman was returning home to the Philippines,
from where she had moved to New York seven years earlier,
on KAL Flight 007, which was shot down by a Soviet fighter
plane. All 269 persons on board were killed. Evelyn’s
husband, Eric, sued Korean Air Lines seeking damages for
Evelyn’s pre-death pain and suffering, for his own loss of her
financial contributions and household services, and for the
grief, mental anguish, and loss of society he suffered along
with other members of Evelyn’s family. The case was consol-
idated with all of the other federal cases arising out of the
disaster for a single trial on liability in the United States
District Court for the District of Columbia. A jury found
against Korean Air Lines determining that the shoot-~down
resulted from KAL’s “willful misconduct” so the Warsaw
3a
Convention’s limitations on carrier liability were inapplicable.
See In re Korean Air Lines Disaster of September 1, 1983,
932 F.2d 1475, 1478-79 (D.C. Cir.), cert denied sub nom.
Dooley v. Korean Air Lines, 502 U.S. 994 (1991).
At the subsequent damages trial in this case, both sides
presented evidence as to whether passengers survived the
initial impact of the missile attack and were, thus, subject to
pain and suffering before the plane crashed into the Sea of
Japan. Forman offered evidence of the grief suffered by
Evelyn’s survivors, and also put on expert testimony estimat-
ing the amount of future financial contributions he lost due to
his wife’s death. The jury awarded Eric Forman and Eve-
lyn’s other family members damages under each theory put
forward at trial for a total of $1,277,300. Prejudgment inter-
est, calculated at the prime rate, increased the judgment to
$2,151,050. In response to post-trial motions by Korean Air
Lines, the district court entered judgment as a matter of law
striking the jury awards for grief and mental anguish (as
nonrecoverable under the Warsaw Convention) and loss of
Evelyn’s financial contributions (as resting on insufficient
evidence). The district court rejected KAL’s challenges to
the awards for pre-death pain and suffering and for Evelyn’s
family’s loss of society. Both parties appeal portions of the
district court’s decision.
II.
Loss of Society/Mental Grief
KAL appeals the district court’s entry of judgment grant-
ing Evelyn Forman’s survivors $290,000 for “loss of care,
comfort, society, companionship, love and affection.” Forman
concedes that recovery of those damages is foreclosed by the
Supreme Court’s recent decision in Zicherman, which held
that the limitation on recovery to pecuniary damages in the
Death on the High Seas Act, 46 U.S.C.App. §§ 761-768 (1975)
(DOHSA), obtained in a Warsaw Convention case arising out
of an air crash on the high seas. Accordingly, we reverse the
district court’s entry of judgment on this claim. Forman did
not challenge the district court’s reversal of the jury’s award
4a
of $195,000 for the mental anguish and grief of Evelyn’s
survivors until his reply brief. Forman asserted then that his
first reading of Zicherman—decided some 10 days before his
initial brief was due—had indicated that these damages, like
loss of society damages, were no longer available under the
Warsaw Convention. Further study, however, changed his
mind. Ordinarily, we will not entertain arguments or claims
raised for the first time in a reply brief. See, eg., LaRouche
v. FEC, 28 F.3d 187, 140 (D.C. Cir. 1994); McBride v. Merrell
Dow Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C. Cir.
1986) (“Considering an argument advanced for the first time
in a reply brief ... is not only unfair to an appellee but also
entails the risk of an improvident or ill-advised opinion on the
legal issues tendered.”) (citations omitted). That Forman had
10 days to read the Zicherman opinion before he filed his
opening brief hardly creates an exceptional circumstance
allowing him to raise a new ground for appeal in his reply
brief. We will thus not disturb the district court’s ruling that
damages for the survivors’ mental grief are not recoverable.
Pre-death Pain and Suffering
The jury awarded the estate of Evelyn Forman $120,000
for pain and suffering she endured between the time the
missile struck the airplane and the time the airplane crashed.
Korean Air Lines contends that Forman failed to proffer
sufficient evidence to support this award and also that these
non-pecuniary damages, as it explains for the first time in its
reply brief, are barred by the DOHSA as interpreted in
Zicherman. Korean Air Lines argues that it should be
permitted to raise this argument because the briefing sched-
ule (Forman brought a cross-appeal) permitted Forman in his
reply brief to respond to KAL’s reply brief argument. Nev-
ertheless, since the exchange took place in reply briefs, we
were denied the opportunity to receive the full briefing that
the ticklish question KAL raises deserves. And that Zicher-
man was decided after KAL filed its opening brief does not
justify its tardiness. The argument that pre-death pain and
suffering damages are not available if DOHSA applies has
a
Sa
been raised numerous times before Zicherman. Compare,
e.g., Azzopardi v. Ocean Drilling & Exploration Co., 742 F 2d
890, 893 (Sth Cir. 1984) (survival action permissible in DOH-
SA action), with In re Air Crash Disaster Near Honolulu,
Hawaii, 792 F. Supp. 1541, 1545-46 (N.D. Cal. 1990) (DOHSA
preempts survival action). Zicherman itself could not have
surprised KAL: the counsel who argued this case before us
argued Zicherman before the Supreme Court. Accordingly,
we do not, as the Sixth Circuit recently has, Bickel v. Korean
Air Lines, No. 93-2144, slip op. at 17-18 (6th Cir. Apr. 29,
1996), decide whether pre-death pain and suffering damages
may not be recovered after Zicherman.
As to the sufficiency of the evidence that Evelyn Forman
survived the initial impact of the missile strike and was
conscious for some or all of the time it took the plane to
descend into the Sea of Japan, we agree with the Second
Circuit, which has twice upheld awards for claims from the
same incident. See Hollie v. Korean Air Lines, 60 F.3d 90,
92-93 (2d Cir. 1995), judgment vacated on other grounds and
case remanded, 116 S. Ct. 808 (1996); Zicherman v. Korean
Air Lines, 43 F.3d 18, 23 (2d Cir. 1994), rev'd in part on other
grounds, 116 S. Ct. 629 (1996).
The key factual dispute turns on whether the passengers
were immediately rendered unconscious. Forman offered
evidence that some occupants of the plane—the flight crew—
survived the missile impact for at least 104 seconds. The
flight data recorder continued to function for that amount of
time and it captured the flight crew’s post-impact actions and
utterances. Forman’s experts testified that the passengers
could have remained conscious during the decompression that
followed the puncturing of the fuselage, and that they would
have had sufficient time to don their oxygen masks, which, in
any event, would have been less and less necessary as the
plane descended.’ The experts testified that the descent
1 Forman’s airplane expert testified that the holes in the fuselage
would have caused the cabin’s atmosphere, which was initially
equivalent to an altitude of 4,800 feet, rapidly to approach the
ambient altitude of between 35,000 and 38,000 feet. Since the
6a
would have taken between nine and twelve minutes and that
the passengers would have suffered physical pain due to the
decompression. And, according to stipulation of the parties,
Evelyn’s seat was a full 32 rows from the tail of the piane
wnere the shrapnel appears to have hit. This body of evi-
dence permits the inference that Evelyn Forman survived the
missile impact, remained conscious despite the airplane’s de-
compression, and experienced decompression-related pain.
KAL’s evidence to the contrary was impressive. Its ex-
perts asserted that the plane disintegrated after 104 seconds
and that, in any event, the airplane’s cabin would have almost
immediately equalized with the rarified ambient atmosphere,
rendering all passengers unconscious—and thus anesthetized
to pain—in a matter of seconds. We do not think, however,
that the trial left the jury with but one conclusion to draw,
Parker v. District of Columbia, 850 F.2d 708, 711 (D.C. Cir.
1988), cert. denied, 489 U.S. 1065 (1989), nor do we think that
the pain and suffering award could only have resulted from
jury speculation.
Loss of Financial Contributions
Although the jury awarded Forman a total of $392,300 for
the loss of financial contributions from his wife, the district
court granted judgment in favor of KAL. Forman relied on
an expert who calculated Evelyn Forman’s future earnings
($19,804 in 1983) based on the average earnings of a college-
educated female of her age. The district judge thought that
testimony was “speculation and conjecture” because Evelyn
Forman’s actual earnings in the United States never exceed-
ed the $5,253 she made in 1988. The district court was also
troubled by the lack of evidence as to what portion of
Evelyn’s future earnings would benefit Eric.
airplane’s ventilation system was continuously forcing air into the
cabin, the expert stated that the interior atmosphere would not
have equalized with the ambient altitude, but would have reached
only the equivalent of roughly 22,000 feet. Forman’s physiologist
testified that at that altitude, the passengers would have been
conscious for five to ten minutes even without the oxygen masks.
7a
This is a close issue. The district judge would have been
on firm ground but for the undisputed testimony of her
husband that Evelyn had only recently received a green card
and that prior to that point she had been inhibited from
seeking a high-paying job. To be sure, she did not earn a
great deal even in the months between getting her green card
and taking the ill-fated flight. But her husband testified that
she had not actively sought other employment then, knowing
that she was soon to travel back to the Phillippines for a two-
week visit. Although it may seem farfetched, the jury could
have credited that testimony. We note that the tax returns
indicating Evelyn’s prior, meager earnings were presented to
the jury and used by KAL in cross-examining plaintiffs
expert and in assailing his conclusions during closing argu-
ment. The jury was thus presented with, and legitimately—if
barely legitimately—rejected, evidence suggesting that plain-
tiffs expert’s estimates were unreasonable.”
Since the expert concluded, and the jury reasonably could
have agreed, that Evelyn’s earnings history was of limited
predictive value, this case is akin to those in which courts
have allowed loss of future earnings damages for decedents
with little or no earnings history. See, e.g., Reilly v. United
States, 863 F.2d 149, 166-167 (lst Cir. 1988); see also In re
Air Crash near Cerritos, California, 982 F 2d 1271, 1278-79
(9th Cir. 1992); Caron v. United States, 548 F.2d 366, 370 (1st
Cir. 1976). Nor do we think that Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 567-70 (D.C. Cir. 1993), on which
the district court and Korean Air Lines rely, requires a
different result. In Joy, we reversed a jury verdict based on
? That does not mean that we will never disturb a judgment based
on expert testimony. See Joy v. Bell Helicopter Textron, Inc., 999
F.2d 549, 569 (D.C. Cir. 1993) (“[I]n view of the patent flaws in
(plaintiffs expert’s] testimony, we must resist the temptation to
answer objections to receipt of expert testimony with the shorthand
remark that the jury will give it ‘the weight it deserves.’ ”) (quota-
tions omitted). Where the conclusions have an adequate foundation
in fact, concerns we might have as to their probative value are
somewhat allayed where evidence giving rise to these concerns
enters the jury’s ken.
8a
expert testimony painting an improbably rosy picture of the
decedent’s future earning capacity based on assumptions
about decedent’s pc:sible career moves that were “wholly
speculative” in light of his work history. Since Evelyn’s pre-
green card work history could be legitimately disregarded in
predicting her future earnings, we think that Forman’s ex-
pert’s reliance on data concerning the average woman of
Evelyn’s age and education was permissible.*
Finally, we are satisfied that sufficient evidence support d
the proposition that the Formans’ was a share-and-share-
alike household such that the jury could reasonably find that
whatever portion of Evelyn’s earnings remained after taxes
and after her personal consumption would redound to Eric’s
benefit.
Prejudgment Interest
Korean Air Lines objects to the district court’s award of
prejudgment interest at the prime rate for each year between
the accident and the entry of judgment. KAL contends that
the purpose of prejudgment interest is to compensate—but
not overcompensate—the plaintiff. Since the prime rate—the
rate charged by banks on short-term, unsecured loans to
their most creditworthy customers—not only consists of the
financial community’s guess as to future inflation rates, but
also includes a profit component and an allowance for the risk
of default, it is argued to be too high, resulting in a windfall
for Forman. KAL prefers the 52-week Treasury Bill rate,
which is said to represent the financial community’s guess as
to the appropriate return on a risk-free loan.
KAL concedes that the decision on how to compute pre-
judgment interest is discretionary with the district court. We
quite agree with many of our sister circuits that the use of
the prime rate for determining prejudgment interest is well
within the district court’s discretion. See, eg., Cement Divi-
3 Indeed, the use, where appropriate, of statistics based on aver-
ages derived from large samples may limit jury speculation more
than imaginative prognostication founded on “facts” specific to a
decedent.
al
9a
sion, Nat? Gypsum Co. v. City of Milwaukee, 31 F.3d 581,
587 (7th Cir. 1994), affd, 115 S. Ct. 209 (1995); Mentor Ins.
Co. v. Brannkasse, 996 F.2d 506, 520 (2d Cir. 1993); Uniroy-
al, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed. Cir.
1991); Alberti v. Klevenhagen, 896 F.2d 927, 938, vacated in
part, 903 F.2d 352 (5th Cir. 1990) (holding a district court’s
failure to use the prime rate to be in error). Indeed, we
think the Seventh Circuit is correct—that the prime rate is
not merely as appropriate as the Treasury Bill rate, but more
appropriate:
Interest at what rate? Surely the market rate. That is
what the victim must pay—either explicitly if it borrows
money or implicitly if it finances things out of cash on
hand—and the rate the wrongdoer has available to it... .
[A] court should use the ‘prime rate’—that is, the rate
banks charge for short-term unsecured loans to credit-
worthy customers. This rate may miss the mark for any
particular party, but it is a market-based estimate.
In the Matter of Oil Spill by the Amoco Cadiz off the Coast of
France, 954 F.2d 1279, 1832 (7th Cir. 1992).
Accordingly, we affirm the entry of judgment for dece-
dent’s pre-death pain and suffering, and we affirm the district
court’s calculation of prejudgment interest at the prime rate.
We reverse the judgment of the district court awarding
damages for loss of society, and striking the award for loss of
financial contributions as too speculative and remand for
entry of the appropriate orders.
10a
UNITED STATES DISTRICT COURT -
FOR THE DISTRICT OF COLUMBIA
MDL Docket No. 565
Civil Action No. 83-3587 (AER)
Filed: June 6, 1995
Eric W. FORMAN, Individually and as Personal
Representative of the Estate of EVELYN S. FORMAN,
Deceased,
Plaintiff,
—Y
KOREAN AIR LINES, Co., LTD.,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion of Defendant
Korean Air Lines Co., Ltd. (*KAL”) for Judgment as a Mat-
ter of Law, pursuant to Fed. R. Civ. P. 50, Plaintiff’s Oppo-
sition thereto, KAL’s Reply, and Plaintiff’s Sur-Reply.
I. Background
Plaintiff Eric W. Forman, in his individual capacity and as
personal representative of the estate of his deceased wife,
Evelyn S. Forman, and on behalf of the decedent’s parents
(Anselmo and Leticia Sinjian) and siblings (Edna Sinjian,
Marisa Sinjian, Babylon Marie Estrada and Henry Sinjian)
a NT
lla
(collectively referred to as “the Beneficiaries”), sought
wrongful death and survival damages from KAL for the death
of Evelyn Forman, a passenger on KAL Flight 007, which
was shot down by Soviet military aircraft on September 1,
1983 over the Sea of Japan. After a consolidated trial before
this Court, on August 2, 1989, a jury found KAL liable for the
shootdown of Flight 007 and guilty of wilful misconduct.
KAL’s liability was affirmed on appeal. Jn Re Korean Air
Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C. Cir.),
cert. denied, 502 U.S. 994 (1991).
In a damage trial held on Plaintiff’s claims,' which were
brought under the Warsaw Convention? and the Death on the
High Seas Act (“DOHSA”),’ a jury awarded the following
damages:
1. to the estate of Evelyn Forman:
a. $120,000.00 for conscious mental and physical
pain, suffering and fear of impending death;
2. to Eric Forman:
a. $92,00.00 for loss of financial contributions
from Sept. 1, 1983 to date of trial;
b. $300,000.00 for loss of future financial
contributions;
c. $80,000.00 for loss of services from Sept. 1,
1983 to date of trial;
' At the close of Plaintiff's evidence during the damage trial,
KAL moved for a directed verdict in its favor pursuant to Fed. R. Civ. P.
50(a) as to the following: the loss of financial contributions claim of Eric
Forman; the loss of society claims of Eric Forman and of the Benefi-
ciaries; the mental anguish, grief and sorrow claims of Eric Forman and
of the Beneficiaries; and the claim of Evelyn Forman’s estate for con-
scious mental and physical pain, suffering and fear of impending death.
KAL renewed its motion at the close of its case. This Court denied KAL’s
motion.
. Convention for the Unification of Certain Rules Relating to
International Transportation by Air, October 12, 1929, entered into force
for the United States on October 29, 1934, 49 Stat. 3000; T.S. No. 876,
reprinted in 49 U.S.C. App. § 1502 (1988).
3 46 U.S.C. App. § 761 (1988).
12a
$200,000.00 for loss of services in the future;
$80,000.00 for loss of care, comfort, society,
companionship, love and affection from Sept.
1, 1983 to date of trial;
$40,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future;
$40,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial; and
$15,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
in the future.
to Anselmo Sinjian:
a.
$30,000.00 for loss of care, comfort, society,
companionship, love and affection from Sept.
1, 1983 to date of trial;
$10,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future;
$15,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial; and
$15,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
in the future.
to Leticia Sinjian:
a.
$20,000.00 for companionship, loss of care,
comfort, society, love and affection from Sept.
1, 1983 to date of trial;
$20,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future;
$30,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial; and
ea
13a
d. $30,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
in the future.
5. to Edna Sinjian:
a. $20,000.00 for loss of care, comfort, society,
companionship, love and affection from Sept.
1, 1983 to date of trial;
b. $10,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future; and
c. $20,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial.
6. to Marisa Sinjian:
a. $10,000.00 for loss of care, comfort, society,
companionship, love and affection from Sept.
1, 1983 to date of trial;
b. $10,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future; and
c. $10,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial.
7. to Babylon Marie Estrada:
a. $10,000.00 for loss of care, comfort, society,
companionship, love and affection from Sept.
1, 1983 to date of trial;
b. $10,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future; and
c. $10,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial.
8. to Henry Sinjian:
a. $10,000.00 for loss of care, comfort, society,
companionship, love and affection from Sept.
1, 1983 to date of trial;
l4a
b. $10,000.00 for loss of care, comfort, society,
companionship, love and affection in the
future; and
c. $10,000.00 for mental anguish, grief and sor-
row, accompanied by physical manifestations
from Sept. 1, 1983 to date of trial.
Judgment on the jury verdict was entered on December 7,
1994.
II. Summary of the Issues
KAL now moves this Court for judgment as a matter of law
on several grounds. KAL contends that the jury award to Eve-
lyn Forman’s estate for conscious mental and physical pain,
suffering and fear of impending death was not supported by
the evidence. KAL also argues that the Court erred as a mat-
ter of law in allowing recovery for loss of society and for
mental anguish, because such damages are not permitted
under DOHSA, which KAL contends exclusively governs the
types of damages recoverable for wrongful deaths occurring
on the high seas. Alternatively, KAL argues that even if loss
of society damages are permitted, such damages may be
recovered only by the decedent’s financially dependent rel-
atives. KAL also asserts that even if mental anguish damages
are permitted, the awards for mental anguish were not sup-
ported by the evidence and were excessive. KAL further
claims that the jury awards to Eric Forman for loss of finan-
cial contributions and for loss of services were not supported
by the evidence and were excessive.
Plaintiff counters that all of the damages awarded to the
claimants are permissible under the Warsaw Convention,
which Plaintiff argues, takes precedence over DOHSA. Plain-
tiff further contends that the evidence supported the damages
awarded.
15a
III. Analysis
A. The Estate’s Claim for Evelyn Forman’s Conscious
Mental and Physical Pain, Suffering and Fear of
Impending Death
As this Court has said previously on numerous occasions,
its jurisdiction over this litigation is based on both the War-
saw Convention and DOHSA. An English translation of Arti-
cle 17 of the Warsaw Convention, which was written in
French, provides that:
The carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or 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 opera-
tions of embarking or disembarking.
49 U.S.C. App. § 1502 note, Article 17. Although Article 17
of the Warsaw Convention does not specify the types of dam-
ages recoverable, it does permit recovery for “damage sus-
tained.” This Circuit has held that “damage sustained” refers
to damages, which are compensatory in netvre, for “actual
harm experienced.” Jn Re Korean Air Lines Disaster, 932 F.2d
at 1485.
DOHSA limits wrongful death recovery to the pecuniary
loss of the decedent’s beneficiaries and does not permit what
is commonly known as a “survival action,” in which the estate
recovers nonpecuniary damages for the pain and suffering
endured by a decedent prior to death. 46 U.S.C. §§ 761-762:
see Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623-25
(1978). In contrast, Article 17 of the Warsaw Convention has
been interpreted to permit recovery through both wrongful
death actions and survival actions. See In Re Mexico City Air-
crash of Oct. 31, 1979, 708 F.2d 400, 415 (9th Cir. 1983): In
Re Air Crash Disaster Near Honolulu, Hawaii on Feb. 24,
1989, 783 F. Supp. 1261, 1265 (N.D.Cal. 1992). Since sur-
vival claims may be brought under the Warsaw Convention,
recovery for a decedent’s pre-death pain, suffering and fear of
16a
impending death is permissible, provided that such recovery
is supported by the evidence.
KAL contends that the jury award of $120,000.00 to the
estate of Evelyn Forman for pre-death pain, suffering and fear
of impending death must be stricken because Plaintiff failed
to establish at trial that the decedent survived the Soviet mis-
sile strike, was conscious after the missile strike, was aware
of the impending danger, and endured physical pain prior to
the plane’s crash into the Sea of Japan. Both Plaintiff and
KAL presented expert witnesses who, relying on various
information compiled during the investigation of the crash of
Flight 007, reached certain conclusions about what happened
to the plane and its passengers after the missile strike.
At trial, Plaintiff produced two expert witnesses, Captain
James McIntyre and Commander Robert Elzy. Captain McIn-
tyre, who was accepted by the Court as an expert on the pres-
surization, hydraulics and flight control systems and
operational procedures of 747 airplanes, and as an expert in
aviation safety and accident investigation, testified as to the
likely chain of events that occurred after Flight 007, a 747
aircraft, was struck by the Soviet missile. Captain McIntyre
opined that while Flight 007 was at a cruising altitude of
35,000 feet, one or two Soviet missiles hit the plane and
punctured its tail section. See Forman v. Korean Air Lines
Co., Ltd., No. 83-3587, Transcript of Trial (“F TT"), Vol. 45
(Dec. 7, 1993) at 93-95, 102, 120.4 Captain McIntyre stated
that when the cabin altitude reached 10,000 feet, a warning
alarm in the cockpit alerted the crew to a problem with the
cabin altitude. FTT, Vol. 45 (Dec. 7, 1993) at 120-22. Captain
Mcintyre explained that about twenty-eight (28) seconds after
the missile strike, the public address chime was heard, from
which he inferred that the passengers’ oxygen masks had
dropped from their compartments and that a recorded public
announcement had directed the passengers, in several lan-
* The transcript from the Forman trial shall hereafter be cited as
FTT, Vol. __ (docket number assigned to the transcript), followed by the
date on which the testimony was given and the pages on which the tes-
timony may be found.
17a
guages, to put on their oxygen masks and to extinguish all
cigarettes. FTT, Vol. 45 (Dec. 7, 1993) at 123. Captain McIn-
tyre also testified that the data suggested that between nine
(9) and twelve (12) minutes elapsed between when the Soviet
missile hit Flight 007 and when the plane plunged into the
Sea of Japan, from which Captain McIntyre opined that dur-
ing that time, the pilots of Flight 007 must have maintained
some control of the plane. FTT, Vol. 45 (Dec. 7, 1993) at 111-
13, 118-20. Captain McIntyre also testified that after the oxy-
gen masks deployed, the passengers would have had oxygen
adequate to sustain consciousness until the plane crashed into
the ocean. FTT, Vol. 45 (Dec. 7, 1993) at 126-27, 133-34.
Plaintiff's other expert, Commander Robert Elzy, was
accepted as an expert in the area of aviation physiology. Com-
mander Elzy explained to the jury how changes in ambient air
pressure, including inadequate oxygen supply, affect the
human body. FTT, Vol. 45 (Dec. 7, 1993) at 156-63. If the
oxygen supply of an individual sitting quietly at 35,000 feet
were rapidly disconnected, Commander Elzy testified that the
individual would have a “useful conscious time” of between
thirty-five (35) and forty-five (45) seconds before requiring
supplemental oxygen, which means that for those seconds, the
individual would be fully aware of what was happening in his
or her surrounding environment and capable of taking respon-
Sive action, such as putting on an oxygen mask. F77, Vol. 45
(Dec. 7, 1993) at 159. Commander Elzy also testified that
assuming the passengers had their masks on, they would have
been conscious during Flight 007’s descent and would have
experienced both physical pain and mental suffering, because
of the effects of decompression and their awareness of their
impending death as the plane plummeted toward the ocean.
FTT, Vol. 45 (Dec. 7, 1993) at 177-84.
KAL also presented two expert witnesses whose testimony
was relevant to the estate’s claim for pre-death pain and
suffering. The Court accepted Rudolf Kapustin as an expert
in the fields of aircraft accident investigation, aircraft acci-
dent reconstruction, aviation safety, and accident prevention.
Mr. Kapustin testified that the data suggested that almost
18a
immediately after Flight 007 was hit by one or two Soviet
missiles, the crew lost control of the plane. FTT, Vol. 59
(Dec. 9, 1993) at 53. Mr. Kapustin opined that Flight 007
climbed from 37,000 to 38,200 feet at a rate of 7,000 feet per
minute, stalled, then went into an inverted roll. FTT, Vol. 59
(Dec. 9, 1993) at 53-55. According to Mr. Kapustin, the mis-
sile strike caused rapid decompression inside the passenger
cabin and almost instantaneous failure of several of the
plane’s systems, causing the plane to stall and to disintegrate
as it fell toward the sea. FTT, Vol. 59 (Dec. 9, 1993) at 54-59.
KAL also offered the testimony of Dr. Stanley Mohler,
whom the Court accepted as an expert in the field of aviation
medicine, including high altitude decompressions and the use
and operation of emergency passenger oxygen systems. Dr.
Mohler testified that assuming Flight 007 was cruising at
approximately 35,000 feet above sea level at its normal speed
of 500 miles per hour when it was hit by Soviet missiles, the
passengers would have experienced surprise, confusion and
euphoria before becoming unconscious approximately eleven
(11) seconds after the missile strike. FTT, Vol. 60 (Dec. 10,
1993) at 25, 31-32. Dr. Mohler testified that cyclonic winds
would have rushed through the cabin and that fog would have
formed in the cabin, making it difficult for the passengers to
see or to put on the oxygen masks. FTT, Vol. 60 (Dec. 10,
1993) at 25-26. If the passengers were able to don their
masks, Dr. Mohler stated that the passengers would have
lacked adequate oxygen because the masks leak, rendering
them ineffective above 30,000 feet. FTT, Vol. 60 (Dec. 10,
1993) at 26. Even assuming Flight 007 made a semi-
controlled descent for nine (9) to twelve (12) minutes, Dr.
Mohler opined that the passengers would not have experi-
enced pain because they would have been unconscious eleven
(11) seconds into the descent. FTT, Vol..60 (Dec. 10, 1993) at
33-35.
Despite KAL’s vigorous attacks on the testimony of Plain-
tiff’s experts as highly speculative, it should be readily appar-
ent from the discussion above that the jury was presented with
conflicting versions of what happened to Flight 007 after it
19a
was struck by the missile. The testimony of Plaintiff's experts
provided the jurors with circumstantial evidence from which
they could conclude that the passengers on Flight 007 expe-
rienced pain and anguish prior to the plane's crash into the
ocean. See Zicherman v. Korean Air Lines Co., Ltd., 43 F.3d
18, 23 (2d Cir. 1994), cert. granted on other grounds, 115
S.Ct. 1689 (1995). The instructions given to the jury stated
that in order to award damages to Evelyn Forman’s estate for
pre-death pain and suffering, the jury had to find, by a pre-
ponderance of the evidence, that Evelyn Forman was con-
scious after the missile strike and that she survived for some
period thereafter, during which she experienced physical pain
and mental anguish resulting from that pain. F77, Vol. 63
(Dec. 13, 1993) at 65-66.
The jury was free or reject the theories of either party's
experts and to determine the amount of damages, if any, to
which the decedent’s estate was entitled. Given the testimony
presented by Plaintiff's experts, the Court concludes that the
jury award of $120,000.00 to the estate of Evelyn Forman for
pre-death pain, suffering and fear of impending death was
supported by the evidence and not excessive. KAL is not enti-
tled to relief from the jury award to Evelyn Forman’s estate
for pre-death pain, suffering and fear of impending death.
B. Claims of Plaintiff and of the Beneficiaries for Loss
of Care, Comfort, Society, Companionship, Love
and Affection
KAL moves to strike the damages awarded to Plaintiff and
to the Beneficiaries for loss of care, comfort, society, com-
panionship love and affection (“loss of society”), arguing that
such damages are not permitted under DOHSA, which KAL
alleges exclusively governs the types of damages recoverable
for wrongful deaths occurring on the high seas. Alternatively,
KAL contends that even if loss of society damages are per-
mitted, such damages may be recovered only by the dece-
dent’s financially dependent relatives.
KAL is correct that DOHSA does not permit recovery for
nonpecuniary losses such as loss of society. See Mobil Oil
20a
Corp., 436 U.S. at 623-25. As previously stated, DOHSA is
not the exclusive remedy in this case because claims have
been brought under both DOHSA and the Warsaw convention.
The D.C. Circuit has not yet addressed the question of what
types of damages are recoverable under the Warsaw Con-
vention. However, the Second Circuit, in the interest of uni-
formity, has taken the position that damages under the
Warsaw Convention are governed by general maritime law,
which prohibits loss of society damages absent a showing of
dependency. Zicherman, 43 F.3d at 21-22; In Re Air Disaster
at Lockerbie, Scotland on Dec. 21, 1988, 37 F.3d 804, 829-30
(2d Cir. 1994).
In prior opinions addressing loss of society damages, this
Court has held that the Warsaw Convention permits recovery
for loss of society, so long as a claimant presents sufficient
evidence of a relationship with a decedent from which a jury
could find that a loss of society has occurred. Maikovich v.
Korean Air Lines, Co., Ltd., No. 83-3792, slip op. at 13
(D.D.C. Nov. 14, 1994); Oldham v. Korean Air Lines, Co.,
Ltd., No. 83-3889, 1994 WL 725277, at *5 (D.D.C. Oct. 11,
1994); Ocampo v. Korean Air Lines, Co., Ltd., No. 83-2941,
1994 WL 731569, at *1 (D.D.C. Sept. 16, 1994). Although
KAL, prior to the Second Circuit’s opinion in Zicherman
argued that loss of society damages should be available to
only the dependents of a decedent,* this Court refused to
impose such a limitation because of the Court’s view that the
intent of the drafters of the Warsaw Convention was to
provide broadly for damages sustained. See Maikovich,
No. 83-3792, slip op. at 12-13; Oldham, No. 83-3889, 1994
WL 725277, at *5; Ocampo, No. 83-2941, 1994 WL 731569,
at *1. In a similar vein, this Court declines to adopt the posi-
tion taken by the Second Circuit in Zicherman and in Jn Re
. In support of its position, KAL relies on cases such as Miles v.
Apex Marine Corp., 498 U.S. 19, 33 (1990) (recovery for loss of society
is not permitted in a general maritime action for the wrongful death of a
Jones Act seaman), and Wahlstrom v. Kawasaki Heavy Indus., Litd., 4 F.3d
1084, 1091-93 (2d Cir. 1993), cert. denied, 114 S.Ct. 1060 (1994) (in an
action brought under admiralty law, nondependent parents of a decedent
may not recover for loss of society).
2la
Air Disaster at Lockerbie, Scotland that general maritime law
governs the types of damages recoverable under the Warsaw
Convention because such an approach, while adopted in part
to foster the worthy goal of uniformity, fails to give adequate
consideration to the intent of the drafters of the Convention
or to the Convention’s underlying purposes.
In Forman, there was ample testimony, including that from
the decedent’s husband, father and sister, regarding the close
relationship shared by the decedent with each of her family
members. See, e.g., FTT, Vol. 58 (Dec. 8, 1993) at 127, 151-
52; FTT, Vol. 77 (Dec. 6, 1993) at 125, 141-43. The dece-
dent’s parents and her sister Marisa Sinjian testified that
Evelyn Forman, after moving to the United States. commu-
nicated with her family in the Philippines by sending written
letters and audiotapes. FTT, Vol. 77 (Dec. 6, 1993) at 61-62,
121-22, 143. The decedent’s parents also testified that Evelyn
and Eric Forman visited them in the Philippines in February
of 1983 and that Evelyn was returning to the Philippines to be
with her family to celebrate her parents’ thirty-fifth wedding
anniversary when she was killed on Flight 007. FTT, Vol. 77
(Dec. 6, 1993) at 62-63, 122-23; FTT, Vol. 58 (Dec. 8, 1993)
at 129. The decedent’s father also testified that Evelyn For-
man had promised to bring her younger sister Edna, who suf-
fered from a learning disability, to the United States. FTT,
Vol. 77 (Dec. 6, 1993) at 73.
In light of the testimony presented, this Court finds that
Plaintiff and the Beneficiaries presented sufficient evidence
from which the jury could find that damages for loss of soci-
ety were appropriate. Since the Court also finds that the dam-
ages awarded for loss of society were not excessive, KAL is
not entitled to relief with respect to these awards.
~
C. Claims of Plaintiff and of the Beneficiaries for
Grief, Mental Anguish and Sorrow
KAL also contends that the damages awarded to Plaintiff
and to the Beneficiaries for grief, mental anguish and sorrow
accompanied by physical manifestations, are impermissible
under the Warsaw Convention and therefore should be
22a
stricken. Relying on Eastern Airlines, Inc. v. Floyd, 499 U.S.
530 (1991), KAL argues that recovery of nonpecuniary dam-
ages for grief, mental anguish and sorrow, is not allowed
under the Warsaw Convention. Plaintiff interprets Floyd to
permit recovery for mental anguish, provided that mental
anguish is accompanied by physical manifestations.
In Floyd, an Eastern Airlines jet traveling from Miami to
the Bahamas lost power in all three of its engines and plum-
meted toward the Atlantic Ocean for some period of time until
the flight crew was able to restart one of the engines and land
the plane at Miami International Airport without injury to any
crew members or passengers. During the plane’s descent, the
passengers were told that “the plane would be ditched in the
Atlantic Ocean.” 499 U.S. at 533. Several passengers sued
Eastern Airlines, bringing claims under the Warsaw Con-
vention and state law, for mental distress suffered as a result
of the incident.
The district court presiding over the passengers’ suit ruled
that recovery solely for mental anguish was not permitted
under the Warsaw Convention. /n Re Eastern Airlines, Inc.,
Engine Failure, Miami Int'l Airport on May 5, 1983, 629 F.
Supp. 307, 314 (S.D.Fla. 1986). In reversing, the Eleventh
Circuit held that the authentic French phrase for bodily injury,
“lesion corporelle,” included recovery for purely mental
injuries. Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1480
(1ith Cir. 1989).
In resolving a conflict between the Eleventh Circuit’s deci-
sion and that of the N.Y. Court of Appeals in Rosman v. Trans
World Airlines, Inc., 34 N.Y.2d 385 (1974), the Supreme
Court held in Floyd that Article 17 of the Warsaw Convention
does not permit recovery for purely mental injuries. Floyd,
499 U.S. at 534. The Supreme Court’s analysis focused first
on the phrase “lesion corporelle,” which the Court explained
had been translated narrowly to mean “bodily injury,” thereby
excluding purely mental injuries. /d. at 536-42. In addition,
the Court found no evidence suggesting that the drafters of
the Warsaw Convention intended “lesion corporelle” to
encompass psychic injuries, not only because few jurisdic-
23a
tions recognized recovery solely for mental injuries,® but also
because a narrower reading of “lesion corporelle” was con-
sistent with the Convention’s primary purpose of “limiting the
liability of air carriers in order to foster the growth of the
fledgling commercial aviation industry.” /d. at 546.
Although the Supreme Court in Floyd held unequivocally
that damages solely for mental anguish are not recoverable
under the Warsaw Convention, the Court specifically declined
to address the issue of whether passengers bringing claims
under the Convention could recover for mental injuries
accompanied by physical injuries. /d. at 552. The plaintiffs in
Floyd were denied recovery for mental anguish, even though
they had endured what must certainly have been a harrowing
experience, one which they believed would end with a crash
into the Atlantic Ocean. In contrast, neither Plaintiff nor the
Beneficiaries in this case were on Flight 007, nor were they in
a position either to witness the destruction of the plane or to
have their own safety placed in jeopardy.
Traditionally, tort law has prohibited recovery for mental
injuries to plaintiffs outside of the “zone of danger,” or stated
differently, to those plaintiffs whose physical safety was in no
way jeopardized, and various federal statutes and laws per-
taining to wrongful death claims have been interpreted to
deny recovery for grief, mental anguish and sorrow. See, e.g.,
Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 585 n.17
(1974) (mental anguish or grief is not compensable under the
maritime wrongful death remedy); Gaston v. Flowers Transp.,
° Specifically, the Supreme Court explained that most common
and civil law countries prohibited compensation for psychic injury in
1929 when the Convention was drafted, and therefore the Court con-
cluded that “the drafters most likely would have felt compelled to make
an unequivocal reference to purely mental injury if they had specifically
intended to allow such recovery.” Floyd, 499 U.S. at 545. In addition, the
Court supported its narrower reading of “lesion corporelle” by noting that
in 1951, a committee comprised of twenty (20) signatories to the Warsaw
Convention rejected a proposal by the French delegation to substitute
“lesion corporelle” with “affection corporelle,” a phrase which was
understood by the French to encompass recovery for mental harm unac-
companied by physical injury. Jd. at 546-47.
24a
866 F.2d 816, 819-21 (5th Cir. 1989) (crew member who wit-
nessed the death and injury of other crew members, without
significant injury or fear of injury to himself, could not
recover under the Jones Act for mental anguish); Bullard v.
Central Vermont Ry., Inc., 565 F.2d 193, 197 (1st Cir. 1977)
(Federal Employers’ Liability Act generally limits recovery
for mental distress related to physical injury or to apprehen-
sion of such injury).’ These principles, viewed in light of the
Supreme Court’s analysis in Floyd of both the text and pur-
pose of the Warsaw Convention, lead this Court to conclude
that the Convention does not permit recovery for mental
anguish to nonpassenger plaintiffs outside of the zone of dan-
ger, even where those plaintiffs present some evidence of
physical manifestations of their grief. See Floyd, 499 U.S. at
552 (“[r]ecovery for mental distress traditionally has been
subject to a high degree of proof, both in this country and oth-
ers”). Therefore, the jury’s awards to Plaintiff and to the Ben-
eficiaries for mental anguish, grief and sorrow shall be set
aside.
D. Claim of Eric Forman for Loss of Financial
Contributions
KAL also challenges the jury awards to Eric Forman of
$92,300.00 for loss of financial contributions from Septem-
ber 1, 1983 until the date of the trial and of $300,000.00 for
loss of future financial contributions, on the grounds that the
awards were unsupported by the evidence. The phrase “loss of
financial contributions” refers to lost earnings that Plaintiff
contends the decedent would have amassed from employment
during her natural life had she not been killed on Flight 007.
Testimony at trial established that Evelyn Forman, who
spoke English fluently, received a bachelor of arts degree in-
1973 in communications arts from Mary Knoll College, a
=
The Second Circuit has held that damages for mental injury are
not available under the Warsaw Convention because federal maritime
law, which the Second Circuit contends governs the types of damages
recoverable under the Convention, precludes a decedent’s survivors from
recovering for grief or mental injury. Zicherman, 43 F. 3d at 23.
25a
four-year university in the Philippines. FTT, Vol. 77 (Dec. 6,
1993) at 58; FTT, Vol. 58 (Dec. 8, 1993) at 131. From 1978
when the decedent came to the United States until sometime
in January or February of 1983, she did not have a green card.
FTT, Vol. 58 (Dec. 8, 1993) at 128. However, while in the
United States, the decedent earned income by working for a
travel agency and later as a motel clerk. FTT, Vol. 58 (Dec. 8,
1993) at 109, 116.
Testimony further established that the decedent and Plain-
tiff met in 1979, shortly after Plaintiff had started a garment
business, which he ran from his home. FTT, Vol. 58 (Dec. 8,
1993) at 106-17. The decedent worked with Plaintiff to build
his garment business, and as the personal relationship
between the decedent and Plaintiff progressed, she became
more involved in the sales aspect of the business. FTT, Vol.
58 (Dec. 8, 1993) at 106-17; FTT, Vol. 59 (Dec. 9, 1993) at
21. The decedent and Plaintiff began living together in 1981,
and they were married in 1982. FTT, Vol. 58 (Dec. 8, 1993) at
113.
During their marriage until Evelyn Forman’s death, the
decedent and Plaintiff sustained themselves using his savings
and her earnings from the motel, where she worked about four
days a week. FTT, Vol. 58 (Dec. 8, 1993) at 116.8 The dece-
dent’s W-2 forms from her jobs at the travel agency and the
motel and her federal tax returns indicate that she reported the
following income: $1,189.00 in 1980; $3,200.00 in 1981:
$5,044.00 in 1982; and $5,253.00 in 1983. FTT, Vol. 58 (Dec.
8, 1993) at 167-69. Although the decedent obtained her green
card early in 1983, she did not look for a new job at that time
because she intended to return to the Philippines for her par-
ents’ anniversary celebration in September, 1983. FTT, Vol.
58 (Dec. 8, 1993) at 128-30.
Dr. Thomas Borzilleri, Plaintiff’s expert economist who
testified at the trial, calculated the present value of the dece-
8
Plaintiff testified that when he started his garment business in
1978 he had approximately $60,000.00 in savings that he had accumu-
lated while working as a tax auditor for a state agency in New York. FTT.
Vol. 58 (Dec. 8, 1993) at 106, 126, 164.
26a
dent’s lost earnings by determining the salary of an average
female college graduate of the decedent’s age, which Dr.
Borzilleri stated would have been $19,804.00 in 1984, and
then adjusting that figure to reflect the growth rate of earn-
ings, reductions for personal consumption expenditures, and
work-life expectancy. FTT, Vol. 58 (Dec. 8, 1993) at 195-96.
Dr. Borzilleri stated that he used data reflecting the average
earnings of female college graduates of the decedent’s age to
project her lost earnings, rather than her tax returns from 1980
through 1983, because he did not believe the tax returns rea-
sonably reflected the decedent’s earnings capacity since the
decedent did not have a green card for most of those years.
FTT, Vol. 58 (Dec. 8, 1993) at 202-04, 233-34. Dr. Borzilleri
testified that based on his calculations, the decedent’s lost
earnings in 1993 dollars for the ten-year period between her
death and the trial would be $92,294.00, and her future lost
earnings in 1993 dollars would be $305,146.00. FTT, Vol. 58
(Dec. 8, 1993) at 215, 218.
Citing Joy v. Bell Helicopter Textron, Inc.,? KAL contends
that the jury awards for loss of financial contributions were
based solely on speculative testimony given by Plaintiff’s
expert economist. In Joy, an expert economist calculated the
decedent’s lost earnings based on four scenarios, three of
which involved businesses in which the decedent had never
engaged prior to his death. The defendant challenged the
economist’s testimony, arguing that “it was based solely on
guesswork, speculation, and conjecture.” 999 F.2d at 568. The
D.C. Circuit agreed and concluded that the district court
should have excluded the economist’s testimony since
the record contained “little, if any basis .. . for [the
economist’s] estimates of [the decedent’s] future earning
capacity.” Jd. at 569.
Plaintiff argues that the decedent’s illegal immigrant status
prevented her from finding employment commensurate with
her education. Plaintiff further asserts that the decedent’s low-
paying jobs, which she held without her green card, under-
stated her earnings potential, and that the economist’s
9 999 F.2d 549 (D.C. Cir. 1993).
27a
calculations were reasonable projections of her future earn-
ings. Plaintiff cites several federal and state cases in which
courts have held that past earnings are not dispositive of
future earnings capacity. See, e.g., Croce v. Bromley Corp.,
623 F.2d 1084, 1093-94 n.28 (Sth Cir. 1980), cert. denied, 450
U.S. 981 (1981) (testimony of employee similarly situated to
decedent that after decedent’s death, their employer reorga-
nized its corporate structure, resulting in higher employee
salaries, was permissible as evidence of decedent’s lost future
earnings); Dickens v. United States, 545 F.2d 886, 892-93 (Sth
Cir. 1977) (evidence that medical student killed in plane crash
intended to become a surgeon was admissible where the dece-
dent had survived the rigorous early years of medical school,
had written a complex paper on neurosurgery, and had shown
a clear interest and aptitude for becoming a surgeon).!°
Plaintiff’s reliance on cases such as Croce and Dickens is
misplaced. In those cases, evidence was presented at trial
from which a reasonable inference could be drawn regarding
the decedent’s career choice. By contrast, Plaintiff did not
produce any evidence during the Forman trial regarding the
type of employment Evelyn Forman would have sought after
obtaining her green card had she not been killed. Although
Plaintiff presented undisputed testimony that the decedent
was employed from the time she came to the United States
until her death and that she worked aggressively to help
Plaintiff develop his business, this evidence in its most favor-
able light merely supports a hypothesis that the decedent
would have continued to work.
Dr. Borzilleri completely disregarded the factual informa-
tion developed in the record regarding Evelyn Forman’s
employment history and instead boldly asserted that the dece-
dent would have entered the U.S. workforce and performed at
a level equivalent to that of an average, college-educated
10 See also Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 709-
10 (Sth Cir. 1967) (“past earnings are indicative but not conclusive” of
future potential earnings where there is testimony to support the hypoth-
esis that a decedent’s income would have increased had the decedent
lived).
28a
female.'' The decedent’s tax returns were “reject[ed] out of
hand” by Dr. Borzilleri. FTT, Vol. 58 (Dec. 8, 1993) at 234.
Yet those tax returns show that the most the decedent earned
in annual wages was $5,253.00 in 1983, a figure that stands in
stark contrast to the $19,804.00 salary which Dr. Borzilleri
contends an average, college-educated female of the dece-
dent’s age would have made in 1983. See FTT, Vol. 58 (Dec.
8, 1993) at 169.'? In addition, Dr. Borzilleri did not attempt to
determine the monetary value, if any, of the loss suffered by
Plaintiff’s garment business as a result of Evelyn Forman’s
death, nor did he indicate how the decedent’s earnings pro-
jections would have differed had he assumed that she would
continue to work with Plaintiff in his garment business rather
than enter the workforce on a full-time basis. See FTT, Vol.
59 (Dec. 9, 1993) at 108-112; FTT, Vol. 60 (Dec. 10, 1993) at
100-01. The Court concludes that Dr. Borzilleri’s testimony
regarding the decedent’s future earnings lacked factual basis,
and that the testimony amounts to speculation and conjecture
prohibited under Joy.'* Since the jury awards to Plaintiff for
loss of financial contributions from Sept. 1, 1983 to the date
" Dr. Borzilleri’s own testimony illustrates the speculative nature
of his calculations. On cross-examination, he stated “If [Evelyn Forman]
was capable of . . . working unconstrained in the labor force. . . and
was unable to find work, we’d get one answer. If she found work and she
simply wasn’t worth what the average college graduate made, we'd get
another answer. . . . I can’t tell you much more than that. . . . [I]f the
party is not an average college graduate in terms of ability, then my num-
ber is not on the money.” F7T, Vol. 58 (Dec. 8, 1993) at 233.
12 On cross-examination, Dr. Borzilleri admitted that the Census
Data which he used to project the average earnings of a femaie, college
graduate of the same age as the decedent reflected women who had par-
ticipated in the U.S. workforce for approximately ten years. Dr. Borzil-
leri also stated that he could not determine from the Census Data whether
women of immigrant status have the same earnings capacity as non-
immigrant females. FTT, Vol. 58 (Dec. 8, 1993) at 230-31, 235-36.
13
The Court notes that its ruling should not be interpreted to sug-
gest that past employment history may never be disregarded when pro-
jecting earnings capacity. Rather, the record must provide a factual basis
from which a reasonable inference may be drawn that past earnings do
not fairly reflect one’s future earnings capacity.
29a
of trial and for loss of future financial contributions were
based on Dr. Borzilleri’s testimony, those awards shall be set
aside.
Notwithstanding the Court’s rejection of Dr. Borzilleri’s
methodology, the Court notes that there was absolutely no
evidence presented at trial that would have enabled the jury to
determine how much money Evelyn Forman and Eric Forman
individually contributed to the couple’s joint fund. Stated dif-
ferently, there was no testimony from which the jury could
reasonably ascertain what portion of Evelyn Forman’s earn-
ings if any, were available solely for the use of Plaintiff. See,
e.g., Weal v. Seltzer, 873 F.2d 1453, 1466 (D.C. Cir. 1989)
(jury must determine in wrongful death action what percent-
age of decedent’s income was allocated for support of dece-
dent’s beneficiaries); Moorehead v. Mitsubishi Aircraft Int'l,
Inc., 639 F. Supp. 385, 402 (E.D.Tex. 1986), aff’d in relevant
part, 828 F.2d 278, 291 (Sth Cir. 1987) (decedent’s benefi-
ciaries may recover the monetary value of the benefits they
had a reasonable expectation of receiving from decedent had
decedent lived, including that portion of decedent’s salary
which would have been spent to support the beneficiaries).
The evidence presented at trial merely established that dur-
ing the Forman’s marriage, the couple shared whatever money
they had and survived on Plaintiff’s savings, which totalled
approximately $60,000.00 in 1978, and Evelyn Forman’s
earnings, which ranged from a low of $1,189.00 in 1980 toa
high of $5,253.00 in 1983. FTT, Vol. 58 (Dec. 8, 1993) at
157-61. On cross-examination, Plaintiff conceded that his
Savings were the primary source of funds used by his wife and
him to survive. FTT, Vol. 58 (Dec. 8, 1993) at 157. On this
record, the Court concludes that Plaintiff failed to establish
by a preponderance of the evidence that he suffered pecuniary
losses in the form of lost financial contributions as a result of
Evelyn Forman’s death, so Plaintiff is not entitled to damages
awarded for said claims.
ae HN ae
30a
E. Claim of Eric Forman for Loss of Services
KAL also challenges the jury awards to Eric Forman of
$80,000.00 for loss of services from September 1, 1983 until
the date of the trial and of $200,000.00 for loss of services in
the future, on the grounds that the awards were unsupported
by the evidence. The phrase “loss of services” refers to the
household services that Plaintiff alleges the decedent would
have performed during her natural life and which would have
benefited the Forman household had Evelyn Forman not been
killed on Flight 007.
During the trial, Plaintiff testified that Evelyn Forman spent
approximately three hours a day on “normal housekeeping
chores,” which included cooking, cleaning, laundry and other
household duties. F777, Vol. 58 (Dec. 8, 1993) at 131-32. Dr.
Borzilleri explained to the jury that he made two, mutually
exclusive calculations of the value of the household services
Plaintiff lost. In one calculation, Dr. Borzilleri assumed that
Evelyn Forman would have been employed in the workforce
outside of the home and valued her household services to be
395,870.00 in 1993 dollars, while in the other he assumed that
she would have been a full-time homemaker and valued her
household services to be $426,377.00 in 1993 dollars. FTT,
Vol. 58 (Dec. 8, 1993) at 197, 224-28, 242-45."
There was ampie testimony that Evelyn Forman intended to
seek employment in the paid labor force once she obtained
her green card, so the record provided a factual basis from
which Dr. Borzilleri could infer that the decedent would have
worked outside the home. F7T, Vol. 58 (Dec. 8, 1993) at 128-
30. Moreover, Dr. Borzilleri explained to the jury his method-
ology for determining the monetary value of household
services that Evelyn Forman would have provided had she not
been killed. F7T, Vol. 58 (Dec. 8, 1993) at 224-28. Although
Dr. Borzilleri was cross-examined regarding his rationale for
making two separate calculations for the value of lost house-
” These figures include the value of household services from
September |, 1983 until the date of trial plus the value of household ser-
vices that would have been provided from the date of trial until the end
of the joint life expectancies of Evelyn and Eric Forman.
3la
hold services, KAL did not challenge the methodology that he
used to make those calculations. Given that the record pro-
vided a factual basis for Dr. Borzilleri’s calculations and that
the jury awards for loss of household services were less than
either of the calculations provided by Dr. Borzilleri, the Court
concludes that the awards were supported by the evidence and
not excessive.
Accordingly, it is by the Court this 6th day of June, 1995,
ORDERED, that Defendant KAL’s Motion for Judgment as
a Matter of Law be and hereby is GRANTED in part; and it is
FURTHER ORDERED, that the jury award to Anselmo Sin-
jian of $30,000.00 for mental anguish, grief and sorrow be
and hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Leticia Sinjian
of $60,000.00 for mental anguish, grief and sorrow be and
hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Edna Sinjian of
$20,000.00 for mental anguish, grief and sorrow be and
hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Marisa Sinjian
of $10,000.00 for mental anguish, grief and sorrow be and
hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Babylon Marie
Estrada of $10,000.00 for mental anguish, grief and sorrow be
and hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Henry Sinjian
of $10,000.00 for mental anguish, grief and sorrow be and
hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Eric Forman of
$55,000.00 for mental anguish, grief and sorrow be and
hereby is STRICKEN; and it is
FURTHER ORDERED, that the jury award to Eric Forman of
$392,300.00 for loss of financial contributions be and hereby
is STRICKEN; and it is
32a
a
FURTHER ORDERED, that the total judgment entered on
December 7, 1994 of $2,151,050.00 be and hereby is
AMENDED to $1,236,725.00, which reflects a reduction of
$392,300.00 for damages awarded for financial contributions,
and of $132,796.00 in prejudgment interest discounted by
future losses associated with said damages; and a reduction of
$195,000.00 for mental anguish, grief and sorrow damages,
and of $194,229.00 in prejudgment interest discounted by
future losses associated with said damages; and it is
FURTHER ORDERED, that in all other respects, Defendant
KAL’s Motion for Judgment as a Matter of Law be and hereby
is DENIED.
/s/ AUBREY E. ROBINSON Jr.
Aubrey E. Robinson Jr.
United States District Judge
33a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 95-5230 September Term, 1995
) 83cv03587
Filed: July 5, 1996
ERIC W. FORMAN.
Appellee,
—Vi—
KOREAN AIR LINES, Co., LTp..
Appellant.
Consolidated with 95-5231
Before:
SILBERMAN, WILLIAMS and ROGERS.
Circuit Judges
34a .
ORDER
Upon consideration of the petition for rehearing of appel-
lant/cross-appellee filed June 20, 1996, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT
Mark J. Langer, Clerk
By: ROBERT A. BONNER
Robert A. Bonner
Deputy Clerk
35a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 95-5230 September Term, 1995
83cv03587
Filed: July 5, 1996
ERIC W. FORMAN.
Appellee,
—_VvV.—
KOREAN AIR LINES, Co., LTp..
Appellant.
Consolidated with 95-5231
Before: EDWARDS, Chief Judge, WALD, SILBERMAN.
BUCKLEY, WILLIAMS, GINSBURG. SENTELLE,.
HENDERSON, RANDOLPH, ROGERS. and TATEL,
Circuit Judges
ORDER
Upon consideration of the Suggestion for Rehearing /n
Banc of appellant/cross-appellee, and the absence of a request
by any member of the court for a vote, it is
ORDERED that the suggestion be denied.
36a
Per Curiam
FOR THE COURT
Mark J. Langer, Clerk
By: ROBERT A. BONNER
Robert A. Bonner
Deputy Clerk
Circuit Judge Henderson did not participate in this order.
37a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MDL Docket No. 565
MIsc. No. 83-0345
83-2793 DooLEy
83-2940 SAAVEDRA
84-0331 BOYAR
84-0332 BoYAR
84-1710 CUNNINGHAM
Filed June 4, 1996
IN RE KOREAN AIR LINES DISASTER
OF SEPTEMBER 1, 1983.
“
MEMORANDUM OPINION AND ORDER
On September 1, 1983, Korean Air Lines (“KAL”) flight
KE007 was shot down by a Soviet military aircraft, after it
had veered off its course into Soviet airspace, killing all 269
passengers. The liability of KAL for those deaths was deter-
mined in a multidistrict litigation action in the District Court
for the District of Columbia.' In that action, a jury found that
KAL’s “willful misconduct” proximately caused the passen-
An extensive discussion of the facts of this case may be found in Jn
re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C. Cir.), cert.
denied, 502 U.S. 994 (199] ).
38a
gers deaths, thus allowing recovery beyond the Warsaw Con-
vention’s $75,000 cap on damages. See Warsaw Convention,
Art. 25, 49 Stat. 3020; Order of Civil Aeronautics Board
Approving Increases in Liability Limitations of Warsaw Con-
vention and Hague Protocol, reprinted in note following 49
U.S.C. App. § 1502 (1988 ed.). Following appeals of this
action, the individual compensatory damages trials were
remanded by the Judicial Panel on Multidistrict Litigation to
the original transferor courts. Several actions regarding the
recoverable compensatory damages still remain before this
Court.
Presently before the Court is Defendant KAL’s Motion to
Dismiss Claims for Nonpecuniary Damages. Defendant argues
that damages for loss of society, survivor’s mental grief, and
for predeath pain and suffering of a decedent are not recov-
erable. The parties agree that Plaintiffs’ claims for loss of
society damages must be eliminated in light of Zicherman v.
Korean Air Lines Co., Ltd., ___ U.S. ___, 116 S. Ct. 629
(1996). KAL’s Motion raises two issues: (1) whether claims
for mental grief, recoverable under Korean law, may be pur-
sued in this Court after a choice of law analysis, and (2)
whether survival damages for pre-death pain and suffering
may supplement the wrongful death damages available under
the Death on the High Seas Act (“DOHSA”), 46 U.S.C. App.
§ 761 et seq.
a Discussion
Article 17 of the Warsaw Convention makes an airline
liable for “damages sustained” in the event of the death of a
passenger, it provides:
The carrier shall be liable for damages sustained in the
event of the death or wounding of a passenger or any
other bodily injury suffered by a passenger, if the acci-
dent which caused the damage so sustained took place on
board the aircraft or in the course of any of the opera-
tions of embarking or disembarking.
49 Stat. 301 (emphasis added).
areal
| aptly oboe
A we
EE
39a
Until the Supreme Court’s decision in Zicherman, ens ake
—__., 116 S. Ct. at 629, various courts struggled with the ques-
tion of which “damages” are available under the Warsaw
Convention. See, e.g., In re Korean Air Lines, 932 F.2d. at
- 1475 (D.C. Cir. 1991); In re Air Disaster at Lockerbie, Scot-
land, 928 F.2d 1267 (2nd Cir.), cert. denied, sub nom. Rein v.
Pan American World Airways, Inc., 502 U.S. 920 (1991).
With Zicherman the Court put some of this confusion to rest,
holding that “damage” means only “legally cognizable harm”
and that “Article 17 leaves it to the adjudicating courts to
specify what harm is cognizable.” 116 S. Ct. at 633. The
Court found support for its interpretation of “damage” in Arti-
cle 17 through the express limitations of Article 24 of the
Warsaw Convention which provides:
(1) In the cases covered by articles 18 and 19 any action
for damages, however founded, can only be brought sub-
ject to the conditions and limits set out in this conven-
tion.
(2) In the cases covered by article 17 the provisions of
the preceding paragraph shall also apply, without prej-
udice to the question as to who are the persons who have
the right to bring suit and what are their respective
rights.
49 Stat. 3020 (emphasis added). Under the Court’s interpre-
tation of Article 24(2) when an “action is brought under Arti-
cle 17, the law of the Convention does not affect the
substantive questions of who may bring suit and what they
may be compensated for.” Zicherman, 116 S Ct. at 634. The
Court concluded that “Articles 17 and 24(2) of the Warsaw
Convention permit compensation only for legally cognizable
harm, but leave the specification of what harm is legally cog-
nizable to the domestic law applicable under the forum’s
choice of law rules.” /d. at 637.
A. Choice of Law
Having concluded that compensable harm is determined by
domestic law, the Zicherman Court explained that its next
logical step would be to determine which sovereign’s domes-
tic law applied. The Court did not conduct a choice of law
analysis because the parties had previously agreed that the
issue of compensable harm was governed by United States
law. The Court held, however, that where United States law
governed, the Death on the High Seas Act (“DOHSA”), 46
U.S.C. App. § 761 et seq. (1988), supplied the substantive
law of damages for an aircraft crash on the high sea. /d. at
636.
This Court has not been spared the choice of law question
regarding which sovereign’s domestic law governs com-
pensable harm. Jurisdiction in these actions is premised on the
federal treaty, the Warsaw Convention, 28 U.S.C. § 1331,
admiralty, 28 U.S.C. § 1333, and in part on diversity. Here the
parties are diverse because the Plaintiffs are citizens of the
United States and the Defendant is a foreign nation. In Klaxon
Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487,
496 (1941), the Court held that a federal court sitting in diver-
sity must apply the choice of law principles of the state in
which it sits. Because jurisdiction in these cases is based only
partly on diversity, application of the District of Columbia’s
choice of law rules is not necessarily required, especially
in light of a potential conflict between the District of
Columbia and a federal policy. In O’Melveny & Meyers v.
F.D.1.C., — U.S. __, 114 S. Ct 2048, 2055 (1994), the
Court explained that a special federal rule is justified in
“limited situations where there is a ‘significant conflict
between some federal policy or interest and the use of state
law.’ ”
The Court recognizes that there is “no federal general com-
mon law,” Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938), but
is guided by the Court of Appeals for the Sixth Circuit's
determination that the Warsaw Convention’s, “concrete fed-
eral policy of uniformity and certainty” would be undermined
4la
if a state choice of law rule is applied, and therefore a special
federal rule is appropriate to govern this choice of law
question. Bickel v. Bowden, __ F.3d __, 1996 WL 203349 at
*3 (6th Cir. 1996). In discussing the important federal policy
of uniformity and certainty embodied by the Warsaw Con-
vention, the Court of Appeals for the Second Circuit
explained:
The principal purposes that brought the Convention into
being and presumably caused the United States to adhere
to it were a desire for uniformity in the laws governing
carrier liability and a need for certainty in the applica-
tion of those laws. . . . Hence, the test to be applied is
whether these goals of uniformity and certainty are frus-
trated by the availability of state causes of action for
death and injuries suffered by passengers on interna-
tional flights. We do not see how the existence of state
law causes of action could fail to frustrate these pur-
poses.
In re Air disaster at Lockerbie, Scotland, 928 F.2d. 1267, 1275
(2nd Cir. 1991). Application of the United States’ various
choice of law rules could have a deleterious effect on
consistent determinations of the applicable rules regard-
ing damages under the Warsaw Convention. Thus, this Court
is convinced that a federal choice of law rule is necessary
here.
In the absence of any established body of federal choice of
law rules, courts have looked to the Restatement (Second)
of Conflict of Laws (1969) (hereinafter “Restatements”) as “a
source of general choice of law principles and an appropriate
Starting point for applying federal common law in this area.”
See Bickel, at * 3; Harris v. Polskie Line Lotnicze, 820 F.2d.
1000, 1003 (9th Cir. 1987). Section 175 of the Restatements
provides a choice of law rule (known as the /ex loci delicti
rule) for a wrongful death action and creates a presumption in
favor of law of the location where the injury occurred:
42a
In an action for wrongful death, the local law of the state
where the injury occurred determines the rights and
liabilities of the parties unless, with respect to the par-
ticular issue, some other state has a more significant
relationship under the principles stated in § 6 to the
occurrence and the parties, in which event the local law
of the other state will be applied.
Restatements, § 175. The lex loci delicti rule in § 175 is dif-
ficult to apply in these cases because “it is not clear whether
KE007 was shot down in Soviet airspace, over Japanese ter-
ritory or in international waters.” Jn re Korean Air Lines, 932
F.2d. at 1497 (Mikva, J. dissenting). Additionally, the Sixth
Circuit recognized that assuming that the former U.S.S.R. was
the place the injury occurred, “the U.S.S.R. is ceased to exist
. . . [and therefore] no longer has a judicially cognizable
interest in these matters.” Furthermore, the parties have lim-
ited their choice of law arguments to whether the United
States or the law of Korea applies, and the Court finds that
these countries should be the focus of the choice of law deter-
mination.
“In lieu of the lex loci rule, §6 of the Restatements
endorses a “most significant relationship” or “center of grav-
ity” test, which requires consideration of several factors to
determine which state has a more significant interest in hav-
ing their law applied. “The governmental interest approach
seeks to identify which jurisdictions may have an actual inter-
est in having their substantive law apply to a particular con-
troversy. . . .” See In re Korean Air Linés, 932 F.2d at 1497
(Mikva, J. dissenting). The relevant factors of § 6 include:
(a) the needs of the interstate and international systems;
(b) the relevant policies of the forum; (c) the relevant
policies of other interested states and the relative inter-
est of those states in the determination of the particular
issue; (d) the protection of justified expectations; (e) the
basic policies underlying the particular field of law;
(f) certainty, predictability, and uniformity of result; and
43a
(g) ease in the determination and application of the law
to be applied.
When considering the contacts of the two countries the Court
notes that South Korea is KAL’s place of incorporation, its
principal place of business, and the place where its crews are
trained. On the other hand, the United States is the place of
embarkation for many of the passengers, where the flight
originated, and where all of the tickets were purchased.
Though both the United States and South Korea have
significant contacts, consideration of the factors in § 6 con-
vinces this Court that the United States law should govern
these cases. The Court agrees with the analysis of the Sixth
Circuit that “application of United States law supports ‘ease
in the determination and application of the law applied’ ” and
“ “the relevant policies of other interested states and the rel-
ative interests of those states in the determination of the par-
ticular issue,’” weigh heavily in the favor of this United
States.” Bickel, at * 4. Indeed, “certainty, predictability, and
uniformity of result” would be supported because the
Supreme Court has already applied the United States law
when determining compensatory damages. See Zicherman,
116 S. Ct. at 629; In re Korean Air, 932 F.2d at 1475.
Furthermore, this Court agrees that because “these actions
arise under the Warsaw Convention, neither nation can legit-
imately claim to offer greater protection of the ‘the basic poli-
cies underlying the particular field of law,’ or ‘the needs of
the interstate and international system.’” Bickel, at *4.
Accordingly, the Court finds that the United States law is the
most appropriate when determining the available compen-
satory damages for these actions.
B. Loss of Society and Survivor’s Grief
In light of the Supreme Court’s decision in Zicherman, that
DOHSA, supplies the substantive United States law regarding
damages and that loss of society damages are not available
under DOHSA this Court concludes that survivor’s grief dam-
dda
ages are also unavailable.*? The Zicherman Court held that
under § 762 of DOHSA recovery in a suit for death under
§ 761 “shall be a fair and just compensation for the pecuniary
loss sustained by the persons for whose benefits the suit is
brought.” 46 U.S.C. App. § 762. Following the dictates of
DOHSA, the Court concluded that loss-of-society damages,
since they are not pecuniary, may not be recovered.
. Because this Court has determined that United States law governs
the damages issues in this action and that DOHSA applies, Plaintiffs’ argu-
ment that mental grief damages are available because Korean law permits
claims for such damages is irrelevant.
Additionally, the Court rejects Plaintiffs’ assertion that sections | and 4
of DOHSA are cumulative. 46 U.S.C. App. §§ 761, 764. Following Plaintiffs’
interpretation of DOHSA, they are entitled to recover all pecuniary damages
allowed by virtue of § 1 of DOHSA and in addition any damages allowed by
Korean law pursuant to § 4. The Court finds that sections | and 4 are mutu-
ally exclusive rather than cumulative. See Jn re Air Crash Near Bombay,
India on Jan. 1, 1978, 531 F. Supp. 1175 (W.D. Wash. 1982); Bergeron v.
Koninklijke Luchtvaart Maatschappij N.V., 188 F. Supp. 594 (S.D.N.Y. 1960).
Section | of DOHSA provides:
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 Colombia, 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 exclu-
sive benefit of the decedent's wife, husband, parent, child, or depen-
dent relative against the vessel, person, or corporation which would
have been liable if death had not ensued.
46 U.S C. App. § 761. Section 4 provides:
Whenever a right of action is granted by the law of any foreign
State on account of death by wrongful act, neglect or default occur-
ring upon the high seas, such right may be maintained in an appro-
priate action in admiralty in the courts of the United States . .
42 U.S C. App. § 764. The Court finds that while § 4 permits a cause of
action based upon foreign law to be brought in admiralty in federal court, it
only applies when foreign law applies pursuant to a choice of law analysis.
In this case, it has been determined that United States law governs therefore
the Court finds that § 4 is inapplicable and that only § 1 governs damages.
— es hes
45a
Damages for a survivor's grief are a non-pecuniary form of
damages which represents compensation for an emotional
response to wrongful death. Sea-Land Serv., Inc. v. Gaudet,
414 U.S. 573, 585 n.17 (1974). The Supreme Court has pre-
viously recognized that although federal maritime law permits
dependent survivors to recover loss of society damages, it
precludes survivors from recovering additional damages for
their grief or mental injury. Mobil Oil Corp. v. Higginbotham,
436 U.S. 618, 622 (1978). Having concluded in Zicherman
that DOHSA precludes recovery for the nonpecuniary dam-
ages such as loss of society, survivor's grief should be simi-
larly unavailable. The court agrees with the Sixth Circuit that
there is no “distinction of which the Zicherman Court would
have approved that would permit us to conclude that the
recovery of one sort of non-pecuniary damages, such as loss
of society, is precluded by DOHSA, whereas other sorts of
non-pecuniary damages, such as survivor’s grief, are not.”
Bickel, at *5.
C. Survival Actions for Pre-Death Pain and Suffering
Plaintiffs also argue that DOHSA limits recovery for only
wrongful death claims and does not preclude additional recov-
ery for pre-death pain and suffering because it is a survival
claim.’ There is no dispute that recovery for the decedents’
alleged pre-death pain and suffering is not recoverable under
DOHSA.* Rather, Plaintiffs argue that their survival claims
are distinct from wrongful death claims and are available
under general maritime law and can supplement the damages
recoverable under DOHSA.
’ “A wrongful death cause of action belongs to the decedent's depen-
dents. . . . A survival action, in contrast, belongs to the estate of the
deceased (although it is usually brought by the deceased's relatives acting in
a representative capacity) and allows recovery for the injury to the deceased
trom the action causing death.” Calhoun v. Yamaha Motor Corp., U.S.A., 40
F.3d 622 (3d Cir. 1994); aff'd __ U.S. __, 116 S. Ct. 619 (1996).
7 DOHSA is a wrongful death statute that restricts recoverable to the
“pecuniary loss sustained.” 46 U.S.C. App. § 762.
46a
This Court disagrees. Although, other courts have allowed
a pain and suffering claim to supplement the awards recov-
erable under DOHSA, it appears to this Court that with
Zicherman, the Supreme Court has held that DOHSA provides
the exclusive remedy for damages which cannot be supple-
mented with general maritime principles.’ The Court explained
where DOHSA applies neither state law, nor general maritime
law, can provide a basis for recovery of loss-of-society dam-
ages.” Zicherman, 116 S. Ct. at 636 (citations omitted): See
also Higginbotham, 436 U.S. at 618 (federal maritime law is
not available to supplement DOHSA because with DOHSA
congress specifically spoke to the issue of damages and pro-
vided damages only for pecuniary losses, the Court may not
provide supplementary damages beyond that authorized by
Congress). Therefore, in light of the Supreme Court’s deci-
sion in Zicherman, this Court finds that the non-pecuniary
pain and suffering damages may not supplement the damages
available under DOHSA. oa
II. Conclusion
For the foregoing reasons, it is by the Court this 4th day of
June, 1996,
ORDERED, that Defendant’s Motion to Dismiss All Claims
for Non-Pecuniary Damages be and hereby is GRANTED; and
it is
FURTHER ORDERED, that Plaintiff’s claims for loss of soci-
ety damages, mental anguish and grief, and pre-death pain
and suffering be and hereby are DISMISSED with prejudice.
/s/ AUBREY E. ROBINSON, JR.
Aubrey E. Robinson, Jr.
United States District Judge
In cases decided prior to Zicherman, several courts used general
maritime survival principles to supplement the pecuniary damages available
under DOHSA, with pain and suffering damages. See e.g., Barbe v. Drum-
mond, 507 F.2d 795, 800 (Sth Cir 1974); McAleer v. Smith, 791 F. Supp. 923,
926 (D.R.1. 1992).
47a
ORDER
Upon consideration of the Joint Motion for an Order
Amending Order of June 4, 1996 to Include Statutory Lan-
guage From 28 U.S.C. 1292(b) to Certify the Court’s Order of
June 4, 1996 for an Interlocutory Appeal and a Joint Motion
for a Stay, it is by the Court this Ist day of July, 1996,
ORDERED, that the above-captioned actions be and hereby
are STAYED until further Order of the Court: and it is
FURTHER ORDERED, that the Joint Motion for certification
of this Court’s Order of June 4, 1996 to the Court
of Appeal for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b), be and hereby is GRANTED; and it is
FURTHER ORDERED, that this Court's Order of June 4, 1996
be and hereby is amended to state:
Certification for Interlocutory Appeal
Generally, appellate review of a trial court’s decision is
only appropriate upon an appeal from a final judgement in the
trial court, that is, only after all the issues involved in a par-
ticular lawsuit have been finally determined. See F. James and
G. Hazard, Civil Procedure § 12.4 at 657 (1985). However, in
1958 Congress created a statutory exception to the final judg-
ment rule, codified at 28 U.S.C. § 1292(b). Section 1292(b)
provides in pertinent part:
When a district judge, in making in a civil action an
order not otherwise appealable under this section, shall
be of the opinion that such order involves a controlling
question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate ter-
mination of the litigation, he shall so state in writing in
such order... .
48a
Thus, an interlocutory appeal can be properly certified only
where the district court and the appellate court agree that (1)
an order involves a “controlling question of law”; (2) this
controlling question of law is one upon which “there is sub-
stantial ground for difference of opinion”; and (3) “an imme-
diate appeal from the order may materially advance the
ultimate termination of the litigation.”
The within action are governed by the Warsaw Convention,
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, October 12, 1929, 49
Star. 3000, T.S. No. 876 (1934), reprinted in note following
49 U.S.C. § 1502. The liability of Korean air for the death of
all passengers on Korean Air Lines Flight KE007 has previ-
ously been established. See In re Korean Air Lines Disaster of
September 1, 1983, 932 F.2d 1475 (D.C.Cir.), cert. denied 502
U.S. 994 (1991). The actions remaining in this Court assert
recovery for damages and are postured following the Supreme
Court’s decision in Zicherman v. Korean Air Lines Co., Ltd.,
__._—*U.S. __, 116 S.Ct. 629 (1996), which held that the
wrongful death cause of action is covered by the Death on the
High Seas Act, 46 U.S.C.App. § 764 et seq. (“DOHSA”).
Specifically, Plaintiffs claim a right to recover damages for
mental anguish and grief pursuant to 28 U.S.C. § 764 under
Korean law and that there is a general maritime survival
action separate and distinct from the wrongful death action
under DOHSA which may co-exist with the wrongful death
action.
The Court has granted Korean Air Lines’ Motion to Dis-
miss all claims for nonpecuniary damages holding that men-
tal anguish and grief damages may not be recovered and that
a general maritime survival action may not supplement
wrongful death damages under DOHSA. The pending issues
have never been addressed by the United States Court of
Appeals for the District of Columbia and were not addressed
in Zicherman, _ U.S. ___, 116 S.Ct. at 629.
The parties are of the opinion that the recoverable damages
issues involve controlling questions of law which are of sig-
49a
nificant importance to the remaining damages trials currently
pending in this Court and that there are substantial grounds
for differences of opinion. The parties are further of the opin-
ion that an immediate appeal from this Order will materially
advance the ultimate termination of the remaining litigation.
This Court agrees. During the many years that this litiga-
tion has been in this Court and in the other district courts and
circuit courts across the United States questions regarding
recoverable damages have repeatedly confounded the courts.
Complicating the determination of available damages are cir-
cuit splits and the interplay between the Warsaw Convention,
DOHSA, and general maritime law. With the Supreme Court's
opinion in Zicherman, a major step was taken towards resolv-
ing the difficult question of available damages under the War-
saw Convention. Guidance from the Court of Appeals for the
District of Columbia Circuit regarding: (1) the availability of
mental anguish and grief damages; and (2) the availability a
survival action for pain and suffering damages in light in
Zicherman, will hopefully assist in terminating these action
once in for all. Therefore the Court certifies this Order dis-
missing Plaintiffs’ claims for nonpecuniary damages for an
immediate interlocutory appeal.
It is FURTHER ORDERED, that above-captioned cases be and
hereby are certified for interlocutory appeal pursuant to 28
U.S.C. § 1292(b) because they involve controlling questions
of law as to which there is substantial ground for difference
of opinion and an immediate appeal therefrom may materially
advance the ultimate termination of this litigation.
50a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1995
83cv03587
No. 95-5230
Filed February 22, 1996
Eric W. FORMAN
—
KOREAN AIR LINES Co., LTD.,
Appellant
And cross-appeal No. 95-5231
Before:
BUCKLEY, WILLIAMS, and ROGERS,
z Circuit Judges
ORDER
Upon consideration of the motion Korean Air Lines for
leave to file a supplemental brief, and the opposition thereto,
it is
ORDERED that the motion be granted. KAL shall argue the
significance of the United States Supreme Court’s decision in
Zicherman v. KAL, 116 S. Ct. 629 (Jan. 16, 1996), in its reply
Sla
brief due on February 28, 1996. The appellee/cross-appellant
Shall respond to KAL’s arguments in his reply brief, due
March 13, 1996.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
By: CHERI CARTER
Deputy Clerk/LD
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MDL Docket No. 565
CIVIL ACTION NOs.
83-2793, 83-2940, 83-2941, 83-3177, 83-3154, 83-3204,
83-3289, 83-3587, 83-3792, 83-3793, 83-3889, 83-3890,
84-0331, 84-0332, 84-0542, 84-1358, 84-1707, 84-1708,
84-1710, 84-2646, 84-2672, 84-2858, 85-2788
Filed April 8, 1993
IN RE KOREAN AIR LINES DISASTER
OF SEPTEMBER 1, 1993,
MEMORANDUM OPINION
Before the Court are several pretrial motions filed by the
defendant and plaintiffs in these case. They include: (1)
KAL’s motion requesting that Plaintiffs’ damages be limited
to those recoverable under the Death On the High Seas Act
(“DOSHA”); (2) KAL’s motion for partial summary judgment
for decedents’ Pre-death Pain and Suffering Claims; (3)
KAL’s Motion in Limine to Exclude the testimony of Experts
on Pre-death Pain and Suffering; (4) KAL’s Motion in Limine
to Exclude any and all reference and evidence of KAL’s neg-
ligence and wrongful misconduct; and (5) Plaintiffs’ Motion
for Prejudgment Interest.
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A. Applicable Law
Defendant argues that the determination of damages in
these cases should be governed exclusively by the Death on
the High Seas Act (DOSHA), 46 U.S.C. § 761 et seq. Plain-
tiffs contend that since these claims are brought pursuant to
the Warsaw Convention, DOSHA cannot limit the damages
recoverable. This Court agrees.
As this Court stated previously, DOSHA is not the exclu-
Sive remedy in these cases. The Court has jurisdiction based
concurrently on 28 U.S.C. § 1331 (Federal Question, i.e. the
Warsaw Convention) and on DOSHA. To hold that the con-
flicting portions of DOSHA supersede those of the Conven-
tion would “render the Convention meaningless insofar as it
relates to aircraft accidents which occur on the high seas more
that a marine league from the shore.” See In re Korean Air
Lines Disaster of September 1, 1993 (March ___, 1992) slip.
op at 7.
The Warsaw Convention allows for the recovery of all
“damages sustained” and does not limit who may bring the
suit as long as they can prove the loss. The Court of Appeals
for the District of Columbia has held that “damages sus-
tained” refers to actual harm experienced. See In re Korean
Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1485
(D.D.C. 1991). To the extent that this is contrary to the pro-
vision of DOSHA, the Warsaw Convention shall prevail.
Accordingly, defendant’s Motion is DENIED.
B. Motions Concerning Pre-death Pain and Suffering
Defendant moves for partial summary judgment of dece-
dents’ pre-death pain and suffering claims and requests that
the court exclude the experts who will testify about the
claims. KAL argues that the claim and all testimony in sup-
port of the claim is based on speculation and conjecture.
Plaintiffs argue that there is sufficient evidence to produce a
material question of fact that makes summary judgment inap-
propriate. Further, they contend that the experts’ opinions are
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based on provable facts and will assist there trier of fact in
understanding the evidence or determining a fact in issue.
The Court concludes that summary judgment is not appro-
priate in this instance. A question of fact exists as to what
took place on board the plane after the missile strike. The res-
olution of this matter is material to the pre-death pain and
suffering claims. Therefore, the motion for partial summary
judgment is DENIED. The admission of the expert testimony
is an evidentiary matter that can only be properly determined
during the course of the trial. To the extend that Plaintiffs can
provide the evidence necessary to sustain these claims, it will
be heard by the jury.
C. Refference to KAL’s “Willful Misconduct”
Plaintiffs will not be allowed to make mention of KAL’s
negligence or “willful misconduct” during voir dire or the
presentation of evidence in this case. The liability of the
defendant is mot at issue in these proceedings and any mention
of the jury’s findings would be unduly prejudicial to the
defendant. However, the jury must be told how the litigation
got to this point. Therefore, the parties are to stipulate to a
statement comcerning the events that led to the crash that may
be used in the openings and closings in these cases. This
statement should be submitted to the Court no later than the
close of business on April 19, 1993.
D. Prejudgment Interest
Plaintiffs request that the Court award them prejudgment
interest at the prime rate from the date of the incident. The
defendant argues that Plaintiffs are not entitled to such inter-
est due to their vigorous pursuit of punitive damages. KAL
contends that if the Court determines that prejudgment inter-
est is appropriate, it should be award from the date the
Supreme Court denied certiorari and at the 52-week Treasury
Bill rate.
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The Court finds no merit in KAL’s argument to preclude the
awarding of prejudgment interest. Accordingly, Plaintiffs will
receive prejudgment interest on their damage awards. How-
ever, a Determination of the rate of interest will be made at a
later date.
/s/ AUBREY E. ROBINSON, Jr.
Aubrey E. Robinson, Jr.
United States District Judge
DATE: April 8, 1993
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Relevant Provisions of The 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 disem-
barking.
49 Stat. 3018.
Article 24
1. In the cases covered by Articles 18 and 19 any action for
damages, however founded, can only be brought subject to the
conditions and limits set out in this convention.
2. In the cases covered by Article 17 the provisions of the
preceding paragraph shall also apply, without prejudice to the
questions as to who are the persons who have the right to
bring suit and what are their respective rights.
49 Stat. 3020.
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Relevant Provisions of the Death on the High Seas Act,
§ 761.
§ 762.
46 U.S.C. § 761 et seq.
Right of action; where and by whom brought
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 main-
tain a suit for damages in the district courts of the
United States, in admiralty, for the exclusive bene-
fit of the decedent’s wife, husband, parent, child or
dependent relative against the vessel, person, or cor-
poration which would have been liable if death had
not ensued.
Amount and apportionment of recovery
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 suf-
fered by reason of the death of the person by whose
representative the suit is brought.
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.