Appendix — Pan American World Airways, Inc. v. Pagnucco

Supreme Court, U.S.

; FILED

2) 94 952 NOV 25 1994

No.

abled lbiak

IN THE

Supreme Coot of the United States

OCTOBER TERM, 1994

PAN AMERICAN WORLD AIRWAYS, INC., and

ALERT MANAGEMENT SYSTEMS, INC.,

Petitioners,

Vv.

JupITH A. PAGNUCCO, DONA BARDELLI BAINBRIDGE,

MO_LeENA A. PorTER, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

CLINTON H. CODDINGTON RICHARD M. SHARP *

CODDINGTON, HICKS & FREDERICK C. SCHAFRICK

DANFORTH MARTHA HIRSCHFIELD

555 Twin Dolphin Drive SHEA & GARDNER

Redwood City, CA 94065 1800 Massachusetts Ave., N.W.

(415) 592-5400 Washington, D.C. 20036

(202) 828-2000

Attorneys for Petitioners Pan American World Airways, Inc.

and Alert Management Systems, Inc.

November 25, 1994 * Counsel of Record

4

WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 ry

- .-s —— ——

ine —- a

TABLE OF CONTENTS

Appendix

A.

B.

Revised Majority and Dissenting Opinions of the

Court of Appeals (September 12, 1994) .............

Order Denying Petition for Rehearing Except to

Extent Stated in Revised Majority Opinion and

Denying Suggestion for Rehearing In Banc

UII, TI and nininestnnecentomnannnnee

Order Denying Second Petition for Rehearing

and Suggestion for Rehearing In Bane (October

RES URREREE TO Riel 5) SA otis ea OO

Corrected Order Denying Second Petition for

Rehearing and Suggestion for Rehearing In

Banc (Dated October 28, 1994) -.......222222222.........

Letter from Clerk (November 2, 1994) Enclos-

ing Memoranda of Judge Van Graafeiland .........

Order Granting Motion To Stay Issuance of the

Mandate Pending Certiorari (November 9,

FRE TR es ee a en

Initial Opinions of the Court of Appeals (Major-

ity Opinion Dated January 31, 1994 and Dis-

senting Opinion Dated February 18, 1994) .........

Opinion of the District Court Denying Alert’s

Motion for Judgment as a Matter of Law (No-

I tie SI ii cleinds sensaiced csdbesiiretbiiniakeiekaaginiianinennen

Page

la

85a

87a

89a

9la

95a

96a

—) + —— oe

-

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1280, 1281, 1282—-August Term 1992

Petition for Rehearing Submitted: April 6, 1994

Docket Nos. 92-9251, 92-9253, 92-9255

[Decided September 12, 1994]

IN RE: AIR DISASTER AT LOCKERBIE SCOTLAND ON

DECEMBER 21, 1988

JupITH A. PAGNucco, Individually and as Executrix of

the Estate of Robert I. Pagnucco, deceased; MOLENA A.

PoRTER, Individually and as Administratrix of the

Estate of Walter L. Porter, deceased and Dona Bar-

DELLI BAINBRIDGE, Individually and as Administratrix

of the Estate of Harry M. Bainbridge,

Plaintiffs-A ppellees,

a Yo

PAN AMERICAN WORLD AIRWAYS, INC.,

and ALERT MANAGEMENT SYSTEMS, INC.,

Defendants-A ppellants.

Before:

VAN GRAAFEILAND, CARDAMONE and ALTIMARI,

Circuit Judges.

2a

CARDAMONE, Circuit Judge:

Pan American World Airways, Inc. (Pan Am) and

Alert Management Systems, Inc. (Alert) (collectively Pan

Am, defendants or appellants) appeal from final judgments

entered on September 9, 1992 in the United States District

Court for the Eastern District of New York (Platt, C.J.)

in three cases arising out of the Pan Am Flight 103 ter-

rorist bombing that occurred over Lockerbie, Scotland in

December 1988. The trial was bifurcated into a liability

phase, binding on all plaintiffs whose cases were con-

solidated in this multidistrict litigation, and a damages

phase governing the cases of the three plaintiffs before us.

The damages phase will also set the standards for dam-

age awards in future cases resulting from this tragic

disaster.’

Few Americans have forgotten the bombing of Flight

103 over Lockerbie, Scotland a few days before Christmas

in 1988. There were 259 Americans aboard Pan Am’s

plane from all walks of life. Among the passengers were

business executives, entrepreneurs, airline employees, and

college students—including 38 Syracuse University stu-

dents returning home from studying abroad. Although

four years have passed since this tragedy occurred, it re-

mains vivid in our national consciousness, standing as a

reminder of our collective vulnerability to wanton terrorist

acts.

The 13-week liability trial controlled all the consoli-

dated cases that had been filed against Pan Am throughout

1This opinion has been circulated to the active judges of the

Court prior to filing. A petition for rehearing of the panel deci-

sion filed on January 31, 1994 was submitted on April 6, 1994.

After considering the petition, the majority opinion filed January

81, 1994 and the dissenting opinion filed February 18, 1994 were

withdrawn and the instant revised majority and dissenting opinions

are filed in place thereof. Except to the extent indicated in the

revised majority opinion, the petition for rehearing is denied.

3a

the United States by the passengers’ and the crew’s sur-

vivors and representatives. Trial began April 27, 1992.

The jurors heard lengthy testimony from 58 witnesses,

much of which was introduced by the over 180 depositions

obtained during massive discovery taken worldwide. At

its close, the jury rendered a special verdict finding de-

fendants guilty of wilful misconduct that caused the ex-

plosion and the crash.

At the conclusion of the damages phase $9,225,000

was awarded to the Pagnucco family, $9,000,000 to the

Bainbridge family, and $1,735,000 to the Porter family.

Decedents Pagnucco and Bainbridge had been Pepsico

attorneys, decedent Porter an electrician and part-time

musician. The damage awards included damages for loss

of society and damages for loss of parental care to

adult children. No award for survival damages—sought

by plaintifis—was made because the jury found the pas-

sengers had suffered no conscious pain and suffering

before their deaths. Pan Am and Alert appeal challeng-

ing the finding of liability and the damage awards.

BACKGROUND

On December 21, 1988 a bomb exploded on Pan Am

Flight 103 causing it to crash over Lockerbie, Scotland.

The 243 passengers and 16 crew members aboard the

flight traveling from London to New York all perished.

Numerous plaintiffs, including those in the cases before

us, brought wrongful death actions against Pan Am and

Alert, a Pan Am affiliate that provided security services

in London and in Frankfurt, where Flight 103 originated.

All those actions were consolidated for trial in the Eastern

District of New York.

A single jury trial was conducted before Chief Judge

Platt to try the liability issues common to the passenger

cases. The parties agreed that the case was governed by

the Warsaw Convention, formally named the Convention

for the Unification of Certain Rules Relating to Interna-

4a

tional Transportation by Air, done at Warsaw, Oct. 12,

1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11,

reprinted at 49 U.S.C. app. § 1502 note (1988) [herein-

after Warsaw Convention]. Although the Warsaw Con-

vention generally limits a carrier’s liability for damages

to $75,000 per passenger, Article 25 permits recovery of

unlimited compensatory damages provided the carrier’s

“wilful misconduct” caused the damages. An earlier deci-

sion of this Circuit established that punitive damages may

not be collected under the Warsaw Convention. In Re Air

Disaster at Lockerbie, Scotland on December 21, 1988

(“Lockerbie I’), 928 F.2d 1267 (2d Cir.), cert. denied,

112 S. Ct. 331 (1991).

On July 10, 1992 the jury found that the defendants

engaged in wilful misconduct that led to this fatal crash.

The trial’s liability phase centered on Pan Am’s alleged

noncompliance with Federal Aviation Administration

(FAA) directives concerning baggage inspection, particu-

larly with regard to unaccompanied baggage that might

contain explosives. Additional proof was introduced re-

garding other alleged misconduct on the air carrier’s part.

Plaintiffs contended that the bomb entered the flight on

an unaccompanied bag that Pan Am, through its wilful

misconduct, failed to inspect and detect. Under plaintiffs’

theory—detailed by several expert witnesses—the bomb

was hidden inside a radio-cassette player packed in a

bronze Samsonite suicase. The suitcase supposedly trav-

eled from Malta to Frankfurt on Air Malta Flight 180.

There, the experts posited, it was transferred to the first

leg of Flight 103 from Frankfurt to London, where it was

then placed on Flight 103 bound for New York.

Although bags transferred from other flights to Flight

103 in Frankfurt were x-rayed, plaintiffs assert the airline’s

x-ray procedure violated security requirements contained

in an FAA regulation at issue in this case, Air Carrier

Standard Security Program or ACSSP XV.C.1.(a), which

ensured that bags matched passengers and that any un-

Sa

accompanied bags be physically inspected. Pan Am un-

successfully argued to the jury that its actions did not

amount to wilful misconduct, and that it was impossible

to determine how the bomb was planted on Flight 103.

To meet plaintiffs’ claims of wilful misconduct, Pan Am

and Alert emphasized that the transferred bags had been

examined using x-ray equipment, but that no bomb was

discovered. They challenged plaintiffs’ theory of causa-

tion and suggested that even if there were any misconduct

on their part, it did not lead to the crash.

In finding defendants liable the jury rendered a special

verdict. On the special verdict form, it indicated that it

had specifically found 1) that “Pan Am (including Alert)

engage[d] in wilful misconduct,” and 2) that the wilful

misconduct was “a substantial factor in causing the

disaster.” Following the liability phase, the jury then

awarded compensatory damages in the three plaintiffs’

cases. There are 207 other passenger cases pending, all

awaiting the outcome of this appeal.

DISCUSSION

On appeal Pan Am rolls out a panoply of arguments,

most involving evidence the district court excluded, and

which, therefore, was not heard or considered by the jury.

These contentions concern four broad areas: I) the ex-

clusion of evidence related to Pan Am and Alert’s alleged

noncompliance with ACSSP regulations concerning unac-

companied baggage: II) the admission of evidence show-

ing other alleged misconduct on appellants’ part coupled

with the disallowance of defense testimony concerning

alternate theories of causation; ITI) various other eviden-

tiary rulings; and IV) the legal bases for the damage

awards. In the discussion that follows, we examine each

of these four areas in order.

I. EXCLUDED EVIDENCE PAN AM AND ALERT

ARGUE WOULD HAVE NEGATED ANY WIL-

FUL MISCONDUCT ARISING FROM THEIR

NONCOMPLIANCE WITH CERTAIN ACSSP

REGULATIONS

Appellants insist the trial court committed reversible

error in excluding several pieces of evidence that might

have negated a finding of wilful misconduct based on

appellants’ alleged failure to comply with FAA regula-

tions concerning unaccompanied baggage. This first chal-

lenge centers on rulings excluding three lines of evidence

that appellants believe were relevant to Pan Am and

Alert’s state of mind, that is, their wilfulness. The main

line of barred evidence purportedly demonstrated an oral

waiver by the FAA, excusing Pan Am’s compliance with

relevant security regulations. The breach of those regu-

lations was central to plaintiffs’ case and, as a response,

Pan Am and Alert sought to demonstrate that they

thought they were complying with the FAA requirements.

The second piece of barred evidence was British regu-

lations that did not require the observance of the same

safety standards as did those of the FAA. Appellants

sought to negate any inference of wilfulness on their part

by showing that x-raying baggage transferred from other

airlines—the procedure Pan Am followed—complied with

the British regulations. The third piece of evidence not

entertained was proof that some experts believe the high-

est threat to airline safety is not posed by unaccompanied

baggage. Each of these three lines of evidence, appellants

urge, might have negated plaintiffs’ showing of wilful

misconduct.

The standard of liability under the Warsaw Convention,

as already noted, requires that a carrier have engaged in

“wilful misconduct” causing the claimed losses in order

for plaintiffs to hold a carrier liable in an amount exceed-

ing the Convention’s $75,000 damage limit. See Warsaw

Convention, art. 25. Wilful misconduct under the Con-

vention means that a carrier must have acted either 1)

7a

with knowledge that its actions would probably result in

injury or death, or 2) in conscious or reckless disregard of

the fact that death or injury would be the probable con-

sequence of its actions. See Ospina v. Trans World Air-

lines, Inc., 975 F.2d 35, 37 (2d Cir. 1992), cert. denied,

113 S. Ct. 1944 (1993); In re Korean Air Lines Disaster

of September 1, 1983, 932 F.2d 1475, 1479 (D.C. Cir.),

cert. denied, 112 S. Ct. 616 (1991). The district court

charged the jury under that standard and also charged it

that the standard applied whether wilful misconduct re-

sulted from an act or failure to act by the carrier. Ap-

pellants do not challenge the district court’s jury instruc-

tion as to wilful misconduct. Instead, they focus on the

just recited three different lines of proof they were not

allowed to present to guide the jury’s application of that

standard, that is, the oral waiver, the British regulations,

and expert testimony regarding the threat posed by un-

accompanied baggage.

A. The Alleged Oral Waiver

We begin discussion by reference to the standard of

review on appeal from an exclusion of evidence at triai.

That standard establishes that the relevance and admis-

sibility of proffered evidence rests in the sound discretion

of the trial court. See, e.g., United States v. Caming, 968

F.2d 232, 238 (2d Cir.), cert. denied, 113 S. Ct. 416

(1992); United States v. Ebner, 782 F.2d 1120, 1126

(2d Cir. 1986). Defendants maintain that an FAA of-

ficial granted them an oral waiver excusing strict compli-

ance with certain FAA regulations, and that Chief Judge

Platt abused his discretion when he disallowed their evi-

dence purporting to demonstrate their belief in this waiver.

Although Pan Am is imprecise as to the date of the pur-

ported waiver, it asserts it was given verbally to a Pan

Am official. Virtually no written documentation supports

it. Defendants’ argument essentially is that this evidence

would have shown that their x-ray inspection of interline

bags complied with FAA requirements or that, regardless

8a

of FAA requirements, they did not act with conscious or

reckless disregard of the probable consequences of their

x-ray procedures since they thought the safety precautions

they were following were permissible.

1. The Unambiguous Nature of ACSSP Regulation

XV C.1.(a)

In support of this point, Pan Am points out that a

regulation may be interpreted orally, and that the regula-

tion at issue is ambiguous and therefore susceptible to

such an interpretation. We are unable to accept appel-

lants’ premise that the supposed oral waiver was in fact

an interpretation of an ambiguous regulation. As a

matter of law the FAA regulation at issue here—ACSSP

XV C.1(a)—is not ambiguous, as the following discus-

sion demonstrates.

In April 1986 the FAA established specific ACSSP

regulations and mandated that they be followed at height-

ened security airports designated “extraordinary security”

airports. Both Frankfurt and London’s Heathrow air-

ports were classified as “extraordinary security” airports.

The central regulation at issue in this case, ACSSP reg-

ulation XV C.1.(a), concerns the detection of unaccom-

panied bags. It directs an air carrier operating out of

an extraordinary security airport to

[c]onduct a positive passenger/checked baggage

match resulting in physical inspection or noncarriage

of all unaccompanied bags. The carrier may use

either physical match or administrative match, but,

in either case, it should be done in a way that pas-

sengers are aware of the use of the procedures.

Air carriers like Pan Am, thus were required under

the regulations first to do a physical or an administrative

match to detect unaccompanied bags, and then to physi-

cally inspect any unaccompanied bags before they could

be loaded. ACSSP XV C clearly ordered that an air

carrier operating out of an extraordinary security airport

“shall adopt and carry out the . . . special procedures

except where local conditions preclude and alternative

measures have been approved by the FAA.”

Under ACSSP XV C.1.(a) the positive match is de-

signed to ensure that any unaccompanied bags definitely

will be identified as such. The regulation permits the posi-

tive match to be done either as a “physical match,” in

which passengers identify their bags on the tarmac, or an

“administrative match,” in which the number of passen-

gers boarding the aircraft and the number of bags checked

are compared with the number of bags to be loaded.

Pan Am claimed that it conducted an administrative

match. Plaintiffs averred that this administrative match

did not comply with the regulations because it was incom-

plete and failed to identify all unaccompanied bags. Par-

ticularly, plaintiffs point out Pan Am’s procedures did not

identify the bags of interline passengers, i.e., those pas-

sengers who had transferred to a Pan Am flight from

another airline and whose bags had been checked with

the other airline at the passengers’ point of origin.

If a match conducted under the regulations revealed

unaccompanied bags, the regulations expressly directed

the airline to conduct the second step of the process,

“physical inspection,” before it could carry the bags.

ACSSP XV C.1.(a). Plaintiffs demonstrated that Pan

Am and Alert x-rayed all bags transferred from other

carriers—so-called “interline” bags—but conducted no

other inspection of such bags. Pan Am and Alert assert

that physical inspection could be interpreted to mean an

X-ray inspection. For several reasons, we think this a

strained reading of the unambiguous regulation.

First, the FAA promulgated “Physical Inspection

Guidelines” in the ACSSP which specified that physical

inspection involves opening and inspecting all compart-

ments of baggage. The guidelines do not mention x-ray

as an acceptable means of inspection. Second, the jury

heard testimony from Pan Am’s own General Manager

10a

at Heathrow, and other witnesses as well, that physical

inspection under the regulations involved opening up bags

and that x-raying them did not satisfy the regulation.

Third, ACSSP regulations applicable at other, lower se-

curity airports explicitly permitted x-ray or physical in-

spections. Thus, it is plain that the regulations applicable

at Frankfurt and London’s Heathrow were unambiguous:

they did not permit x-ray inspections as a substitute for a

physical inspection. Appellants’ reliance on United States

v. Eastern Air Lines, Inc., 792 F.2d 1560, 1563 (11th

Cir. 1986), is inapposite because that case involved a

more broadly worded regulation, one suspectible to dif-

ferent interpretations.

We hold, therefore, that the district court did not err

in refusing to allow witnesses—like the co-chair of the

Pan Am Security Task Force, Richard Cozzi—to testify

that they thought the regulations were ambiguous. As a

matter of law, ACSSP XV C.1.(a) is not ambiguous in

requiring a positve match and physical inspection of un-

accompanied bags before they may be carried on board

a departing plane. Introducing testimony to the contrary

would have invaded the court’s function of determining

the law and instructing the jury as to that law. See FAA

v. Landy, 705 F.2d 624, 632 (2d Cir.), cert. denied,

464 U.S. 895 (1983).

2. Proof of the Alleged Oral Waiver

Given that the FAA regulation in question is not am-

biguous, Pan Am next asserts it obtained an oral waiver

of the regulation from the FAA and that the district court

erred in disallowing evidence of that waiver. Evidence

showed that as of April 1986 Pan Am established pro-

cedures to ensure that unaccompanied interline bags were

not carried on its airlines. However, the process for iden-

tifying unaccompanied interline bags proved too “cumber-

some” and expensive. Pan Am therefore stopped per-

forming a match for interline bags in London in Feb-

ila

ruary 1987 and in Frankfurt in July 1988. It also elimi-

nated physical searches of unaccompanied interline bags.

Thereafter bags were simply x-rayed and put on board,

rather than matched against particular tickets. This was

a violation of ACSSP XIV, which requires Pan Am to

advise the FAA in writing if interline bag match has been

discontinued.

It is apparent therefore from the record that Pan Am

made no distinction on Flight 103 between interline ac-

companied versus interline unaccompanied bags. Most

significantly, the Flight 103 pilot was not informed about

the presence of unaccompanied interline bags, in viola-

tion of ACSSP XIII E. Pan Am managers allegedly

instructed gate employees in London not to advise pilots

of unaccompanied bags because it made crews “jittery.”

What remains central to appellants’ defense is their

reliance on x-ray alone to inspect interline bags trans-

ferred to Flight 103. They sought to introduce evidence

that at 1986 and 1987 meetings, mostly with unidentified

FAA officials, oral permission was purportedly given to

Pan Am to allow it to deviate from the ACSSP regula-

tions. Because of that waiver, they contend, they were

in compliance with FAA requirements. They thus sought

to show that their noncompliance from the letter of the

regulations was excused by an exemption.

Yet, the relevant regulations expressly require a written

application for a waiver and written FAA approval based

on certain findings. See 14 C.F.R. §§ 11.25, 11.27(e),

108.7(a)(2), 108.25(b)-(c) (1993); see also 49 U.S.C.

§§ 1357(a) (2) (B), 1421(a)(6) & (c). The Director of

the Office of Civil Aviation Security at the FAA at the

time of the Pan Am bombing, Raymond Salazar, testi-

fied that in order to obtain an exemption from an ACSSP

regulation an air carrier would have to file a written

request and follow a specific procedure that was then in

place. Salazar further denied ever granting an oral waiver

to any Pan Am official or for that matter to any other air

12a

carrier. His predecessor at the FAA, Billie Vincent, tes-

tified to the same effect that written authorization and

approval were required for exemption from ACSSP re-

quirements.

Salazar was asked by plaintiffs to testify whether he

had ever granted an oral waiver to a Pan Am official.

The purpose of the question was to get an explanation

of a statement contained in a Pan Am electronic mail

(e-mail) memorandum. Plaintiffs produced the e-mail

message that Pan Am security officer Daniel Sonesen had

sent to the regional Pan Am security representatives at

Heathrow and Frankfurt. The e-mail message, dated

March 28, 1988, stated in part, “the Dir. FAA R Salizar

has granted x ray as and [sic] alternative to searching

pass. baggage.” Salazar testified that that representation

was inaccurate and a misrepresentation, and when pressed

by counsel, characterized it as “a faleshood.”

Despite requirements that exemptions be in writing,

Pan Am offered no proof that it had ever applied for a

written exemption from the provisions of ACSSP XV C.1.

(a) at Heathrow or Frankfurt. There was evidence that

Pan Am had made written applications on other oc-

casions for exemptions from ACSSP XV C.1, 2, and 3,

indicating that Pan Am was aware of the proper proce-

dure for requesting a waiver. Further, Pan Am’s Chair-

man, Thomas Plaskett, admitted the airline knew waivers

had to be in writing.

Although the FAA regulations occupied a key role in

the trial of this case, it must be kept in mind that Pan

Am and Alert’s compliance with them is not dispositive

of the outcome. As appellants acknowledge in their brief,

and as the court instructed the jury, proof of full com-

pliance with the ACSSP would not necessarily provide

appellants with a complete defense against a claim of wil-

ful misconduct. FAA regulations only establish minimum

requirements for air carriers. A jury could conceivably

find certain circumstances under which an air carrier had

13a

committed wilful misconduct even though it followed

FAA regulations to the letter. Similarly, noncompliance

with ACSSP procedures will not necessarily lead to a per

se finding of wilful misconduct. A carrier might not

have acted with wilful misconduct, even were it to have

failed to comply with an FAA regulation. The issue we

are called upon to decide, thus, is whether evidence of

Pan Am’s alleged oral waiver should have been admitted

by the trial court.

(a) Proposed Testimony

The excluded evidence concerning the oral waiver pri-

marily involved the testimony of three witnesses. We are

told that the first witness, Daniel Sonesen, would have

testified that he approached the FAA in 1986 and re-

ceived a verbal authorization for the x-ray-only inspec-

tion of interline bags, though he could not recall who

gave this authorization. He would have testified further,

so defendants state, that at an October 1987 meeting with

Salazar and others he was advised that x-ray inspection

would comply with ACSSP requirements. Sonesen’s pre-

trial deposition testimony was before the district court,

but we are unable to find in the record an express offer

of proof of what his testimony would have been. More-

over, our faith in the defendants’ versions of Sonesen’s

testimony is not enhanced by the fact that Sonesen’s

1990 deposition testimony is substantially inconsistent

with the representations made by the defendants before

us. Simply put, the defendants refused to put Sonesen on

the stand for their own reasons, and yet want us to ac-

cept at face value representations not made under oath,

not subject to cross-examination, and in fact inconsistent

with prior testimony made under oath. See, e.g., For-

tunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir.),

cert. denied, 409 U.S. 1038 (1972) (stating that appel-

late court will not “permit a party to allege on appeal

what it failed to claim to the trial court,” since that

“would allow a party to obtain a new trial simply on its

14a

claim that it would have proven a certain fact or facts

had it been given a chance”); Moss v. Hornig, 314 F.2d

89, 93 (2d Cir. 1963) (holding that an appellate court

cannot be expected to reverse where there was no offer

of proof, and “where the significance of the evidence

sought to be introduced is not obvious”); Marrone v.

United States, 355 F.2d 238, 241 (2d Cir. 1966) (hold-

ing that the failure to make an offer of proof to demon-

strate the significance of excluded testimony “must be

held to be fatal,” even where persuasive authority indi-

cated that the district court should have allowed the

testimony).

The second witness proffered by the defense was the

former co-chair of the Pan Am Security Task Force,

Richard Cozzi. Alhough Cozzi testified at trial, he was

not permitted to testify as to Pan Am’s purported verbal

authorization from the FAA. Since his proposed testi-

mony was preserved, we can see he would have testified

that the Task Force in late 1986 wanted to find out if

x-ray of interline bags would comply with the ACSSP,

even though some members were doubtful it could com-

ply; the Task Force instructed Sonesen to check with the

FAA as to whether inspection by x-ray satisfied the

ACSSP; and Sonesen reported back that he had done so

and that the FAA said that x-ray inspection of interline

bags would comply with the requirements. Even had

Cozzi been permitted to testify on this issue, his statement

respecting what Sonesen reported would have been inad-

missible hearsay because it was offered for the truth of

the matter asserted, to wit, that Salazar granted Pan Am

a waiver of compliance with ACSSP XV C.1.(a). That

Pan Am offered Cozzi’s testimony for this purpose is clear

from the record:

Mr. SHAUGHNESSY: You talked about what Mr.

Sonesen told you about his discussions with the

FAA. Do you have an opinion as to whether Mr.

Sonesen was telling the truth?

15a

Mr. Cozzi: Yes. I certainly believed Mr. Sonesen

was telling the truth. There was no reason for him

not to.

The third witness was Pan Am’s Chairman, Thomas

Plaskett. Pan Am offered his testimony in an offer of

proof, in which Plaskett stated that he did not recall

having any conversations or information concerning

whether the FAA had authorized Pan Am to use x-ray

machines to examine luggage.

Additional evidence appellants sought, but were not

allowed to introduce to show the supposed appropriate-

ness of their procedures included testimony concerning a

September 1988 FAA inspection at Heathrow at which

Pan Am was not cited for violating ACSSP XV C.1.(a).

(b) Trial Court’s Rulings

In a series of oral rulings repeated throughout the

record, the trial judge stated that any testimony by de-

fense witnesses as to the purported verbal authorization

would be excluded. It treated the proffered evidence as

an attempt to mount a so-called government authoriza-

tion defense, the bounds of which will be discussed

shortly. Chief Judge Platt believed that a government

authorization defense may only be predicated on authori-

zation from a government official with power to grant

such authorization. He held the defense unavailable be-

cause anyone who might have given a verbal exemption

at the FAA would have had no authority to do so.

The trial court also observed that any evidence as to a

verbal authorization would be irrelevant since Pan Am

was charged with knowing the regulations, including those

that stated amendments and exemptions to the regula-

tions must be in writing.

Before analyzing the government authorization defense,

we briefly discuss one of defendants’ arguments for per-

mitting the introduction of the verbal authorization de-

fense: to rebut Salazar’s statements concerning Sonesen’s

l6a

e-mail message, which plaintiffs had introduced into evi-

dence. A trial court may in the interests of fairness allow

otherwise inadmissible evidence on an issue when neces-

sary to rebut a false impression left by inadmissible evi-

dence introduced by an opposing party. See, e.g., United

States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992). But

whether to entertain such sort of proof is left squarely

in the trial judge’s discretion since the presider at trial

is in a better position to assess how to conduct it fairly

than is an appellate court reading the record.

Here the district court did not abuse its discretion in

declining to admit the evidence for this purpose. It di-

rectly offered Pan Am and Alert a curative instruction,

Stating, “[o]n the so-called verbal authorization,

[i]f they want me to give the jury an instruction to dis-

regard the testimony that came in at the outset of the

case before I understood what the issue was, I will be

glad to give that instruction.” Since appellants refused to

ask for that instruction, they waived any complaint as to

harm they may have suffered due to Salazar’s characteri-

zation of Sonesen’s e-mail as inaccurate. See United

States v. Grubczak, 793 F.2d 458, 461-62 (2d Cir.

1986).

Nor is there merit in Pan Am’s contention that it was

an abuse of discretion to exclude testimony regarding a

September 1988 FAA inspection at which Pan Am was

not cited for violations relating to its x-ray procedure.

Other evidence that was before the jury showed FAA in-

spections of Pan Am operations at Heathrow and Frank-

furt had not resulted in any FAA citations.

Now turning to the substantive question of whether

the district court erred in refusing to allow any evidence

regarding the oral waiver, the plaintiffs’ argue initially

that Pan Am failed to make a proper offer of proof with

respect to the evidence they sought to introduce. As-

suming without deciding that defendants sufficiently pre-

17a

served their objection does not change the result, as we

demonstrate below.

We note that the parties and the district court frame

the legal issue they faced in different ways. Chief Judge

Platt thought the offer of proof was an attempt by de-

fendants to mount a government authorization defense.

We believe the proffered proof also can be viewed as an

attempt by defendants to invoke what is often referred

to as a “mistake of law” defense. Defendants assert it

was proof probative of defendants’ states of mind.

(i) Government Authcrization

Chief Judge Platt correctly ruled that a government

authorization defense was not available to Pan Am and

Alert. Such defense requires a demonstration of “legiti-

mate reliance on an official interpretation of law.” See

United States v. Durrani, 835 F.2d 410, 422-23 (2d Cir.

1987). Under our case law, the official on whose inter-

pretation the defendant allegedly relied must have actual

authority. See United States v. Duggan, 743 F.2d 59,

83-84 (2d Cir. 1984) (mistaken belief that individual

had apparent government authority did not warrant sub-

mission of defense to jury); see also United States v.

Schwartz, 924 F.2d 410, 422 (2d Cir. 1991).

Here all the evidence demonstrated that amendments

to or exemptions from ACSSP XV C.1.(a) had to be

made in writing by the FAA following written applica-

tion. Both Salazar and Vincent testified that as Directors

of the FAA Office of Civil Aviation Security they did not

have the authority to alter the ACSSP orally. The regu-

lations support this view, as did testimony of Pan Am’s

own witnesses. Pan Am’s attempted government authori-

zation defense was therefore properly precluded by the

district court because the FAA officials allegedly con-

tacted simply did not have the actual authority to grant

any verbal authorization for Pan Am’s x-ray-only inspec-

tion of interline bags.

18a

(ii) Mistake of Law

Viewed as a mistake of law defense, defendants offered

the oral waiver evidence to show they thought what they

were doing was in accordance with the law and, even if

they were mistaken, under such a circumstance they

should not be held liable for wilful misconduct. Yet,

contrary to appellant’s view, even were a mistake of law

defense one that could be successfully interposed, it

would not necessarily absolve Pan Am of liability in this

Warsaw Convention case. The same standards governing

the availability of mistake of law govern even when it

might not supply a complete defense to liability—in this

case, for example, the jury might have found that com-

plying with the FAA minimum requirements was still

inadequate under the circumstances on the ultimate issue

of wilful misconduct. The usual standards defining the

permissibility of a mistake of law defense are as effective

where the mistaken law is a regulation. See United

States v. International Minerals & Chem. Corp., 402 U.S.

558, 563 (1971) (noting “principle that ignorance of the

law is no defense applies whether the law be a statute or

a duly promulgated and published regulation”).

In any event, the oral waiver evidence was inadmis-

sible for purposes of showing that Pan Am’s violation of

the FAA regulation was the result of a mistake of law.

It has long been a maxim that “ignorance of the law is

no excuse.” The reason for this ancient rule is not be-

cause everyone knows the law, but because ignorance of

it is a ready excuse easily raised and difficult to refute.

We and the Supreme Court regularly acknowledge that a

mistaken view of the law usually will not serve as an ac-

ceptable defense. Durrani, 835 F.2d at 422; Cheek v.

United States, 498 U.S. 192, 199 (1991). While cases

where the rule is cited typically involve criminal offenses,

see, e.g., Cheek, 498 U.S. at 199, it applies equally in

civil cases. See Barlow v. United States, 32 U.S. (7

Pet.) 404, 411 (1833) (Story, J.) (“It is a common

19a

maxim, familiar to all minds, that ignorance of the law

will not excuse any person, either civilly or criminally

.... )3; Ruley v. Nelson, 106 F.R.D. 514, 518 (D. Nev.

1985) (noting ignorance of law is no excuse in civil or

criminal law).

In Cheek v. United States, 498 U.S. 192 (1991), now

a seminal case in the area, the Supreme Court declared

that the term “wilfully” in federal criminal tax statutes

carved out an exception to the general maxim that ignor-

ance of the law is no excuse. Jd. at 199-200. The

Court said that the wilfulness requirement in the tax laws

required the defendant to be allowed to introduce evi-

dence as to any belief—no matter how objectively unrea-

sonable that belief might be—tending to show an un-

awareness of a legal duty on defendant’s part. Id. at

203.

In doing so, the Supreme Court carefully limited its

decision to the tax field. It emphasized “the complexity”

of the tax laws,” 498 U.S. at 200, the difficulty of the

“average citizen” in comprehending duties imposed by

the tax laws, id. at 199, and constructions of the term

“wilfulness” in the tax context, id. at 201. Our subse-

quent decisions and those of other courts acknowledge

Cheek’s limited application. See, e.g., United States v.

Caming, 968 F.2d 232, 240 (2d Cir.) (collecting other

circuits’ cases refusing to extend Cheek to non-tax crimi-

nal statutes), cert. denied, 113 S. Ct. 416 (1992); cf.

Ratzlaf v. United States, 114 S. Ct. 655, 663 (1994)

(not intending to “dishonor the venerable principle that

ignorance of the law generally is no defense to a crimi-

nal charge” while allowing mistake of law defense in the

specific context of criminal prosecutions for violations of

the anti-structuring provision of the money laundering

statutes).

We see no reason that would prompt us to view heavily

regulated air carriers—certified by the FAA and charged

with knowledge of the relevant statutes and regulations

20a

under which they operate—the same as average citizens

who face the daunting task of unraveling the complexities

of the Internal Revenue Code. There is cause to be

wary because of the ease with which air carriers could

fabricate sham defenses and ignore with impunity safety

regulations. See United States v. Squires, 440 F.2d 859,

864 (2d Cir. 1971) (stating “whenever a defense of ig-

norance of the law. . . is claimed, it is recognized that

one may not deliberately close his eyes to what otherwise

would have been obvious to him”). Accordingly, when

a law, rule or regulation that pertains to passenger and

crew safety is clear, we hold that an air carrier—one of

the handful of corporations in the business of transporting

the public by air—may not claim ignorance of the law

as an excuse.

Our holding is narrow. We reiterate it to emphasize its

limitations: in a case brought under the Warsaw Conven-

tion involving violations of FAA regulations that pertain

to the safety of those aboard an aircraft, against a de-

fendant air carrier charged with knowing and following

those regulations, that air carrier may not mount a mistake

of law defense. In the instant case, therefore, the evidence

offered by Pan Am regarding its mistaken view of what

was required by the ACSSP was inadmissible for the pur-

poses of mounting a mistake of law defense.

(iii) State of Mind

Notwithstanding the foregoing, appellants insist the

oral waiver evidence was admissible on the question of

their wilful misconduct, which is of course the ultimate

issue in this Warsaw Convention case, see Ospina, 975

F.2d at 37. In Vinieris v. Byzantine Maritime Corp., 731

F.2d 1061 (2d Cir. 1984), we addressed the question of

admissibility of evidence going to a defendant’s state of

mind in the context of a statute that required “conscious

misconduct” be proven for a seaman to recover under the

penalty provision in a wage-withholding statute. We held

that “[n]o evidence which bore even remotely on [state of

ts be et HSE, Wierik 6 a sath Rscesdiabatntain

21a

mind] should have been kept from the jury, unless it inter-

jected tangential and confusing elements which clearly

outweighed its relevancy.” Jd. at 1064. This formulation

is in some sense a restatement of the well-known bal-

ancing test contained in Rule 403 of the Federal Rules of

Evidence.

Whether the problems to be anticipated by admission of

the oral waiver evidence in the present case clearly out-

weighed the evidence’s relevancy is a close question. Anal-

ysis of this issue cannot exist in a vacuum. Because the

oral waiver evidence was so intertwined with the govern-

ment authorization and mistake of law defenses, which as

a matter of law were not available to defendants, we

believe that admission of such evidence might well have

been unnecessarily confusing and perhaps prejudicial so

as to justify the trial court’s refusal to allow its admission.

Nonetheless, even were it an abuse of discretion to

deny admission of the oral waiver evidence on the fore-

going grounds, we hold that such an error was harmless.

An evidentiary ruling is harmless when we are fairly

assured that it had no substantial effect on the jury’s ver-

dict. See Rea, 958 F.2d at 1220. In the instant case, the

record is replete with evidence that wholly undermines

Pan Am’s claim of good faith. The overwhelming evi-

dence presented during the course of the three and one-

half month trial established that Pan Am officials ignored

repeated warnings and signals that its security measures

were insufficient.

The scope and nature of this evidence needs to be set

forth in some detail. We begin in 1983 when a Pan Am

flight leaving Rome, Italy for New York was the target of

a bomb planted in an unaccompanied interline suitcase.

Disaster was averted only when Turkish authorities con-

ducted a passenger/bag match that uncovered.the snitcase.

Pan Am thus knew of this type of sabotage and that physi-

cal matches of suitcases were successful in averting such

a terrorist act.

22a

In 1985 a bomb hidden inside a radio and packed in

an unaccompanied interline bag exploded on an Air India

747 over the North Atlantic, killing all aboard. The dan-

gers of a bomb hidden inside radios packed in interline

bags were well known to Pan Am and the airline industry.

These two incidents not only led to the adoption of

ACSSP XV.C.1(a), but they conveyed clear warnings

that what actually happened at Lockerbie was a distinct

possibility.

In September 1986 Pan Am received a report from a

group of Israeli security experts commissioned to review

Pan Am security at various airports, including Heathrow

and Frankfurt. The security experts concluded that “un-

der the present security system, Pan Am is highly vulner-

able to most forms of terrorist attack. The fact that no

major disaster has occurred to date is merely providen-

tial.” The report specifically cautioned Pan Am on the

use of x-ray machines as substitutes for physical searches,

and the dangers of interline unaccompanied bags.

In October 1988 Alert Manager for Germany Ulrich

Weber wrote a memo to New York headquarters citing

the need for more personnel to remedy Frankfurt’s secu-

rity shortcomings. Only minimum efforts were made to

remedy them.

In July 1988 the FAA issued a Security Bulletin warn-

ing of the high threat of a terrorist retaliatory attack

because of the downing of an Iranian Jetliner. In Novem-

ber 1988 Pan Am received an FAA Security Bulletin

warning that a raid on a terrorist group had uncovered a

bomb built into a Toshiba radio cassette player. (Toshiba

Warning). The bulletin warned that the bomb was diffi-

cult to detect by the use of uormal x-ray.

The most wilful disregard of passenger safety, border-

ing on the outrageous, was in December 1988 when Pan

Am received an FAA Security Bulletin advising that the

United States Embassy in Helsinki had received a tele-

phone warning that a Pan Am flight from Frankfurt to

23a

London and on to New York would be bombed. (Helsinki

Warning). The Helsinki warning came just 14 days before

the instant tragedy and specifically referred to the Toshiba

Warning. Despite these warnings, Pan Am failed to con-

duct searches of unaccompanied interline luggage, and

instead inspected such bags only by x-ray. Pan Am did

not even alert x-ray technicians to watch for Toshiba

radios. It violated FAA regulations by failing to match

the bags with particular tickets without advising the FAA

in writing that interline bag match had been discontinued.

And it violated other FAA regulations by failing to warn

pilots about the unaccompanied bags on board for fear

that the crews might become “jittery.” Additionally, Pan

Am did not replace several members of its security team

who were woefully undertrained given their responsibility

for thwarting terrorist attacks.

Moreover, the Helsinki Warning was deliberately placed

under a pile of papers on the desk of the security officer

who received the bulletin and was first discovered in the

morning following the downing of Flight 103. There was

also evidence that Weber, the security officer in charge,

ordered the Pan Am employee who discovered the bulletin

after the explosion to backdate the warning to give gov-

ernment investigators the impression that the warning was

timely disseminated when received. The district court

found that the backdating was evidence of consciousness

of guilt on the part of Pan Am for its part in the wrongful

causation of the crash.

This and other evidence overwhelmingly supported the

jury’s conclusion that but for Pan Am’s wholly inadequate

terrorist prevention techniques and its deliberate indif-

ference and overt acts of wilfulness, the bombing and the

senseless loss of life would not have occurred. Even had

Pan Am been permitted to present Sonesen’s deposition

testimony to the jury, the above recited proof, plus the

additional fact that any waiver of FAA regulations had to

be in writing, make it plain to us that it would not have

24a

affected the jury’s finding that Pan Am was guilty of wilful

misconduct. Its exclusion was therefore harmless error.

Consequently, for all of the above reasons, the district

court’s refusal to permit the admission of Pan Am’s oral

waiver evidence—on government authorization, mistake

of law, and state of mind grounds—does not constitute a

sufficient basis for the granting of a new trial.

B. British Regulations

Appellants’ second contention regarding wrongful ex-

clusion of evidence concerning wilful misconduct relates

to British air safety regulations. Appellants sought to

introduce British Department of Transportation docu-

ments and deposition testimony from James Jack, the

Principal Aviation Security Advisor for the British De-

partment of Transportation, in which he explained that

Pan Am’s reliance on x-raying interline bags would have

complied with British security directives.

With respect to the exclusion of the documentary evi-

dence there was no abuse of discretion. That evidence was

proffered in the form of British Department of Transport

documents and notably included circulars not having the

force of law. In addition many of the documents were no

longer in effect at the time of the accident. This proof

was properly ruled inadmissible as irrelevant, vague, and

remote.

The refusal to admit Jack’s deposition is more problem-

atic. The district court stated that it would not admit

Jack’s testimony about British regulations unless Pan Am

and Alert stipulated that they had violated the ACSSP.

Pan Am and Alert understandably refused to make such a

potentially prejudicial stipulation. The trial court then

suggested that Pan Am and Alert had to choose between

claiming they followed the ACSSP or claiming that they

violated it, but their wilful misconduct should be judged

by local security regulations.

25a

We agree with Pan Am that it was error to force them

to choose between alternate defenses. Alternate and in-

consistent defenses are permitted in civil trials. See Fed.

R. Civ. P. 8(e)(2); Mathews v. United States, 485 US.

58, 64 (1988); Kibby v. United States, 372 F.2d 598,

601 (8th Cir.), cert. denied, 387 U.S. 931 (1967). The

district court had no authority to exclude evidence on the

ground that it supported a defense not consistent with

Pan Am and Alert’s alternate theory.

Nevertheless, though it was error to refuse to permit —

the few pages of Jack’s deposition testimony to be read to

the jury, it was harmless error. As we noted above, a rul-

ing is harmless when we are fairly assured that admitting

or refusing to admit certain proof had no substantial effect

on the jury’s verdict. See Rea, 958 F.2d at 1220. Here

the district court did permit Pan Am to adduce some testi-

mony that its conduct comported with British regulations.

The jury had that point before it. Further, plaintiffs’ case

rested principally on Pan Am and Alert’s ACSSP viola-

tions, not on whether appellants violated British govern-

ment’s security regulations. The bulk of the evidence

regarding the x-ray procedures concerned the issue of

ACSSP violations, the importance of conducting a pas-

senger/bag match, and appellants’ purported knowing or

reckless behavior in failing to follow FAA regulations.

Moreover, Pan Am and Alert presented a strong defense

to the jury that even if they violated the ACSSP, their

actions did not amount to wilful misconduct. They in-

sisted that a bomb contained in a suitcase would have

been visible on x-ray. In fact, the parties stipulated to

that fact. Appellants’ counsel emphasized in closing argu-

ment and elsewhere the safety and expense of the x-ray

technology purchased and employed by Pan Am, the fact

that even an untrained person could spot a radio on one

of their x-ray machines, and made the point that FAA

inspections had shown Pan Am x-ray equipment to be in

compliance with regulations. Dr. Grodzins, an MIT pro-

26a

fessor, testified regarding the effectiveness of x-ray exami-

nation of baggage. It simply cannot be supposed on the

entirety of the voluminous record that Jack’s several

pages of deposition testimony would have substantially

influenced the verdict, given the fact that the closely re-

lated defense that Pan Am presented failed to persuade

the jury.

C. “Highest Threat’ Evidence

The last of the three wrongfully excluded wilful-mis-

conduct-evidence assertions raised by Pan Am is the

court’s refusal to allow evidence that bombs in unac-

companied baggage did not pose the “highest threat” to

airline safety. Appellants sought to introduce this evi-

dence to refute the view of one of plaintiffs’ experts that

unaccompanied bags pose the greatest risk to airline

security.

Pan Am and Alert sought to elicit testimony from their

terrorism expert that unaccompanied bags do not pose the

highest threat to airline safety; instead, unsuspecting

couriers pose that threat. Plaintiffs’ expert, Billie Vin-

cent, had very briefly testified that the unaccompanied bag

poses the “highest threat” to airline safety. The defense

sought to rebut this position through their expert, Dr.

Ariel Merari. They contend Vincent’s testimony left a

false impression as to Pan Am’s degree of awareness of

the probable consequences posed by unaccompanied

baggage.

Although the district court did not admit the defense

expert’s testimony, it agreed to give an instruction that

there was no evidence to show that unaccompanied bags

posed the greatest security threat and that the jury should

disregard any such opinion. Since such a curative instruc-

tion was given, any risk that Vincent’s brief, qualitative

testimony was improperly considered by the jury was

removed. See, e.g., United States v. Tutino, 883 F.2d

1125, 1137 (2d Cir. 1989), cert. denied, 493 U.S. 1081

27a

(1990). Thus, no abuse of discretion resulted from the

exclusion of further testimony on this peripheral subject.

IT ADMISSION OF OTHER MISCONDUCT EVI-

DENCE BY PAN AM AND ALERT AND EX-

CLUSION OF PAN AM AND ALERT’S ALTER-

NATIVE SUGGESTIONS OF CAUSATION

Pan Am and Alert’s second major line of argument

concerns what it thinks was an error in the trial court’s

admitting other evidence of misconduct on their part,

while at the same time excluding the testimony of several

of their witnesses who, they assert, would have presented

alternative theories of causation. We examine each of

these challenged rulings separately.

A. Evidence of Appellants’ Alleged Other Misconduct

Appellants complain of evidence received to show

other acts of alleged misconduct by the airline. This evi-

dence of Pan Am’s and Alert’s other misconduct is di-

vided into two categories—SECURITY VIOLATIONS

ON FLIGHT 103 and THE “ALERT” SECURITY

PROGRAM. With respect to the former alleged miscon-

duct, the proof was as follows: (1) Ulrich Weber, the

head of Alert in Frankfurt had been convicted in the

U.S. of passing bad checks eight years before he was hired

by Alert and had been fired after the disaster at Locker-

bie for using a company credit card in a brothel; 2) the

ramp around Flight 103 had been left unguarded in vio-

lation of ACSSP when the Alert employee assigned to

guard it felt ill and went inside; 3) Alert employees were

inadequately trained, particularly employee Sabine Fuchs

who could not explain what a “selectee” was even though

her job was to pick “selectees” out from passengers for

further screening; one security agent for Flight 103 was

an “alternate” who had only two to three hours of train-

ing and did not know what the ACSSP required. She

thought someone else was monitoring the baggage. 4)

28a

Critical to this case is the fact that the x-ray technician

for the flight, the only defense against the bomb, had been

employed for only seven weeks, had no formal training,

and had not been tested. He had never heard about the

Toshiba warning.

The proof regarding THE “ALERT” SECURITY

PROGRAM revealed first, that it was neither related to

security, nor was it a program. Instituted by Pan Am in

May 1986 during a period of sharp decline in interna-

tional travel due to terrorist attacks, the program was

a misleading public relations ploy designed to make

would-be travelers feel more secure. An advertisement

signed by Pan Am’s chairman of the board an CEO was

placed in the New York Times and other publications:

Dear Air Traveler:

On June 12, 1986, Pan Am will initiate one of the

most far-reaching security programs in our industry,

a program that will screen passengers, employees,

airport facilities, baggage, and aircraft with unre-

lenting thoroughness.

The campaign also featured TV ads. As part of the pro-

gram, Pan Am imposed a security surcharge on interna-

tional passengers to pay for the promised additional

security measures. The surcharge generated $18 million

in annual revenue. The security surcharge was $5 each

way on overseas tickets—many Flight 103 passengers

paid the surcharge—but proceeds from the surcharge were

not earmarked for security and instead were commingled

with Pan Am’s general funds. Alert’s first president,

Fred Ford, wrote a memo to Pan Am senior executives

stating that the promised security program was not being

put into effect and that passengers would complain “What

do I get for my surcharge?”

The evidence revealed, second, that Alert added more

guards during FAA inspections to make it appear that

more guards were on duty than generally was the case;

29a

this included on one occasion having a guard from the

front end of an airplane sent to the back when FAA

inspectors come on board so that the inspectors would

think that there was a guard at both places. Third, in

1986 Pan Am declined to adopt security recommenda-

tions made to it by the Israeli security consulting firm,

KPI, which criticized Pan Am’s reliance on x-ray and

emphasized Pan Am’s vulnerability to terrorist attack.

Fourth, untrained sniffing dogs had been paraded in front

of ticket counters at Kennedy airport to create an appear-

ance of security which did not otherwise exist.

Appellants’ motion to exclude proof not tied to the

Air Malta theory of causation (that the bomb bag came

from an interline transfer) was denied by the trial court.

It observed that since appellants planned to contest the

Air Malta theory, plaintiffs were entitled to present evi-

dence of alleged other misconduct on defendants’ parts.

The trial judge reasoned that even if the Air Malta theory

did not explain the bomb’s presence on Flight 103, other

pervasive and extensive wilful misconduct by defendants

must have accounted for the bomb’s presence. Following

this general ruling, no specific objections were made to

the individual pieces of evidence listed above on any

other grounds. Other objections that might have been

raised were waived. Accordingly, we review this as a gen-

eral ruling permitting the introduction of evidence show-

ing prior misconduct, unrelated to the Air Malta theory.

This proof that Pan Am acted with wilful misconduct

through recklessly disregarding passenger safety in gen-

eral, with knowledge of the probable consequences of that

disregard, was properly received. Although Fed. R. Evid.

404(b) provides for the exclusion of prior misconduct

evidence in order to show “character” or action “in con-

formity therewith”, we follow the inclusionary approach

to prior misconduct evidence that allows the admission of

prior misconduct for any other relevant purpose. Ismail

v. Cohen, 899 F.2d 183, 188 (2d Cir. 1990).

30a

Plaintiffs asserted that a contempt for security pervaded

Pan Am from the highest to the lowest levels of the cor-

poration, and that the totality of security failures would

permit the jury to infer wilful misconduct. We have

approved consideration of the totality of a defendant’s

wrongdoing in determining whether wilful misconduct

existed. See Tug Ocean Prince, Inc. v. United States, 584

F.2d 1151, 1164 (2d,Cir. 1978), cert. denied, 440 USS.

959 (1979); see also United States v. Daly, 842 F.2d

1380, 1388 (2d Cir.) (background evidence may be in-

troduced to “furnish an explanation of the understanding

or intent with which certain acts [are] performed”), cert.

denied, 488 U.S. 821 (1988).

Pan Am insists that causation was not established and

that therefore the objected to wilful misconduct evidence

was speculative and unrelated as a cause of the crash.

We think the question of whether it had a causative effect

was, without objection or exception, properly submitted

to the jury. In other areas of the law, causation may be

established when an increasing number of defendant’s

faults creates an inference that the totality must have

caused the harm. See In Re Marine Sulphur Queen, 460

F.2d 89, 99-100 (2d Cir.), cert. denied, 409 U.S. 982

(1972); see also Capellini v. McCabe Powers Body Co.,

713 F.2d 1, 5 (2d Cir. 1983) (“decisive consideration in

assessing the sufficiency of . . . evidence of causation is

the ‘relative probability’ of ‘possible explanations’ for the

accident, and the ‘legal inferences that can most reason-

ably be drawn from the most probable ones’”). In libel

cases, for example, recklessness causing harm may be

demonstrated by cumulative inferences. See Goldwater v.

Ginzburg, 414 F.2d 324, 342 (2d Cir. 1969), cert.

denied, 396 U.S. 1049 (1970).

We do not hold that as a matter of law the evidence

in this case required the jury to agree with the plausibility

of a theory that Pan Am and Alert’s misconduct was so

3la

reckless it must have caused the bomb to go undetected.

We say only that under the Warsaw Convention wilful

misconduct causing an accident may be established by

inference from the totality of the circumstances. Accord

In re Korean Air Lines Disaster of September 1, 1983,

932 F.2d 1475, 1481 (D.C. Cir.) (sufficient evidence

existed “from which to decipher a pattern of conduct giv-

ing rise to liability”), cert. denied, 112 S. Ct. 616 (1991).

This conclusion does not mean that any of the burden

of proving causation was lifted from plaintiffs. It re-

mained plaintiffs’ duty to prove causation under whatever

theory they pursued. In this connection, the district

court carefully and in an extensive and well balanced

charge instructed the jury that it must find not only wilful

misconduct, but also a causal connection between that

misconduct and the passengers’ deaths. Chief Judge Platt

added that defendants’ conduct would not be proximate

cause of the accident if the accident would have occurred

anyway, absent defendants’ acts or omissions. Since the

evidence introduced by the plaintiffs related to such a

showing of causation, there was no error in its receipt.

B. Evidence Challenging Plaintiffs’ Causation Theory

Various attempts by appellants to suggest other specific

causation theories were then rebuffed by the trial court.

Pan Am and Alert challenge the exclusion of the testi-

mony of four defense witnesses: two offered as experts on

terrorism, Noel Koch and Dr. Ariel Merari, and two

offered as experts on terrorist bombings, Peter Gurney

and John Horne of Scotland Yard. Pan Am also contends

it was error to restrict its cross-examination of plaintiffs’

experts, Billie Vincent and Rodney Wallis (the former

Director of Security for the International Air Transport

Association), with respect to other methods of bombing.

The trial judge based his rulings largely on the fact that

he found appellants had offered nothing to show there

was any other specific bombing theory.

32a

The admission or exclusion of expert testimony rests

soundly in the broad discretion of the trial court. Fed. R.

Evid. 702; Hamling v. United States, 418 U.S. 87, 108

(1974); United States v. Gigante, 729 F.2d 78, 83 n.2

(2d Cir.), cert. denied, 467 U.S. 1206 (1984). That

court may, in its discretion, refuse to entertain expert testi-

mony it thinks unhelpful, cumulative, confusing to the

jury, or more prejudicial than probative. See 3 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Evidence

{ 702[02], at 702-18 to -20 (1993). Expert testimony as

to causation may be excluded, particularly where it is

speculative and conjectural. See Washington v. Armstrong

World Indus., Inc., 839 F.2d 1121, 1123-24 (Sth Cir.

1988) (court within discretion excluding expert’s testi-

mony where expert never examined plaintiff but relied on

other expert’s examinations and such testimony as to cause

of death was “pure speculation”); Hull v. Merck & Co.,

Inc., 758 F.2d 1474, 1477-78 (11th Cir. 1985) (trial

court did not abuse discretion in excluding medical ex-

pert’s deposition as to cause of plaintiff's disease because

assumptions made seemingly firm opinion speculative and

irrelevant); Atlantic Mut. Ins. Co. v. Lavino Shipping

Co., 441 F.2d 473, 475 (3d Cir. 1971); cf. Novak v.

United States, 865 F.2d 718, 722 (6th Cir. 1989) (error

to rely on expert’s speculation to find causation); Jones v.

Goodlove, 334 F.2d 90, 94 (8th Cir. 1964) (“[A] trial

court may abuse its discretion by allowing a seemingly

qualified expert to exceed the permissible bounds of

opinion testimony and enter into the realm of utter specu-

lation and conjecture.”).

The trial court did not abuse its discretion in excluding

the testimony of defense experts Koch and Merari because

their conclusions as to more likely explanations for the

bombing were speculative. Any testimony as to some

other particular method of bombing—without any foun-

dation that such method might explain the Flight 103

bombing—was clearly conjectural.

33a

Further, appellants admit in their brief that they “did

not undertake to prove what method the terrorists used to

bomb the aircraft . . . [but] contended that the method of

bombing has not yet been established.” Because there was

no evidence presented with respect to other possible

methods of causation that might explain how this tragic

event occurred, and because appellants never sought to

show that any other specific method of bombing could

have caused it, any testimony relating to such other causes

would necessarily be speculative. Although Dr. Merari

and Noel Koch would also have provided general back-

ground information on terrorism, the determination

whether or not this testimony would have been helpful to

the jury rested squarely within the trial court’s discretion.

See Fed. R. Evid. 702.

Discretion was also properly exercised in limiting

appellants’ cross-examination of plaintiffs’ experts to sce-

narios that had evidentiary support in the record. Cross-

examination of plaintiffs’ experts as to other causation

theories—absent a good-faith basis to believe those the-

ories had evidentiary support—was properly excluded.

Trial courts possess wide discretion in limiting cross-

examination, see N.V. Maatschappij Voor Industriele

Waarden v. A.O. Smith Corp., 590 F.2d 415, 421 (2d

Cir. 1978), and here the precluded questions could have

drawn the jury into misleading conjecture. Pan Am and

Alert were permitted lengthy cross-examination of plain-

tiffs’ experts, and were only barred from suggesting, with-

out basis, that other scenarios caused the bombing.

It was also not error to decline to receive the testimony

of terrorist bombings experts Peter Gurney and John

Horne. Their testimony as to the importance of X-rays

would have been cumulative since similar testimony was

adduced from other witnesses. Additionally, these wit-

nesses’ expertise as to x-rays was questionable. Both wit-

nesses were explosives officers with Scotland Yard who

specialized in street bombings. Neither had experience in

aviation bombings or security. Moreover, neither had any

34a

background or knowledge concerning the Flight 103

bombing itself; the trial court found this rendered their

proposed testimony unhelpful and largely irrelevant. This

ruling was well within the trial court’s Fed. R. Evid. 702

discretion.

Contrary to appellants’ suggestions throughout their

briefs, Pan Am and Alert were not thereby prevented from

presenting a defense on causation. Pan Am and Alert’s

summation focused at length and in detail on criticizing

plaintiffs’ causation theory; this remained Pan Am and

Alert’s main theme throughout cross-examination and

their defense case as well. They vigorously attacked major

and minor pieces of evidence alike. They were permitted

to argue the possibility that a “rush-tag” bag, one by def-

inition sent by the airline apart from its owner, was the

unexplained, unaccompanied 13th interline bag x-rayed

by operator Kurt Maier in Frankfurt. Importantly, appel-

lants did not offer fact witness to testify as to another

method of bombing that might have caused Flight 103’s

crash.

Appellants admit that at trial they sought to argue that

the method of bombing was not established and concede

they were unable to suggest a specific alternate theory.

They vigorously argued that the method of bombing was

unclear, and accomplished this through extensive cross-

examination of plaintiffs’ experts. Pan Am and Alert also

were not deterred from attacking plaintiffs’ weaker theory

that widespread misconduct on defendants part more

likely than not caused the bomb to be loaded on Flight

103. In sum, Pan Am and Alert exercised the ample

opportunities given them to undermine plaintiffs’ causa-

tion theory. Thus, the rulings limiting cross-examination

and expert testimony were unremarkable and without

error.

Ill OTHER EVIDENTIARY RULINGS

While appellants raise an array of objections to other

evidentiary rulings—some of which patently involved

Se a eee

35a

judgment calls by the trial judge—none of them amount

to reversible error.

A. Plaintiffs’ Experts’ Testimony

Appellants’ first objection is to the testimony of plain-

tiffs’ expert witnesses, Rodney Wallis and Billie Vincent.

Wallis and Vincent gave their opinions relying on evi-

dence adduced at trial, at times displaying for purposes of

reference trial transcripts on a projection screen. Based on

this testimony, for example, Wallis opined that Pan Am

was operating under a commercial rather than security

priority and that training requirements had been violated.

Vincent stated—again based on other record testimony—

that Pan Am had committed acts that violated ACSSP XV

(FES).

Pan Am insists the Wallis and Vincent testimony

involved improper summaries of evidence. But the cases

relied on for support are inapposite because they do not

address experts’ summarizing record evidence, but rather

they address summaries of evidence of the sort covered

under Fed. R. Evid. 1006. See, e.g., Fagiola v. National

Gypsum Co. AC & S., Inc., 906 F.2d 53, 56-57 (2d Cir.

1990); United States v. Conlin, 551 F.2d 534, 538-39

(2d Cir.), cert. denied, 434 U.S. 831 (1977). Rule

1006 provides in part, “The contents of voluminous writ-

ings, recordings, or photographs which cannot conven-

iently be examined in court may be presented in the form

of a chart, summary, or calculation.” It is of some sig-

nificance that neither Wallis nor Vincent was giving the

type of summary testimony that appears on a chart or

graph.

The trial judge, therefore, properly ruled on the sum-

mary testimony under the federal rules governing expert

testimony rather than under Rule 1006. Under those

rules, expert testimony may be based on other testimony

or evidence obtained at trial. See Fed. R. Evid. 703

36a

(“The facts or data in the particular case upon which

an expert bases an opinion or inference may be those

perceived by or made known to the expert at or before

the hearing.”). No error occurred from the format of

testimony summarizing the trial record or from the use

of transparencies to highlight portions of the trial tran-

scripts to which the witnesses referred when they were

on the witness stand.

Wallis’ and Vincent’s summaries of testimony in the

record did not, as appellants assert, improperly impinge

on the jury’s functions. Pan Am avers that in assessing

other witnesses’ testimony, Wallis and Vincent made cred-

ibility judgments that are properly reserved to the jury.

They rely for this contention on United States v. Scop,

846 F.2d 135, 142, modified, 856 F.2d 5 (2d Cir.

1988). There, as it was said in dicta that one witness

may not offer an opinion based on his or her assessment

of the accuracy of another witness, where that other wit-

ness’ credibility is to be determined by the trier of fact.

Id. Even were Scop’s discussion of this point binding on

us—and it is not—Scop does not in any event, control

the outcome of the present case.

Wallis’ and Vincent’s testimonies were not improper

simply because they were based on the testimony of

others. Precedent has long acknowledged the accepta-

bility of expert testimony based on the trial record.

See, e.g., United States v. Johnson, 319 U.S. 503, 519-

20 (1943). No doubt remains under the federal rules

that an expert may testify based on facts elicited at trial.

See Fed. R. Evid. 703. The rules also provide, “testi-

mony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an

ultimate issue to be decided by the trier of fact.” Fed. R.

Evid. 704(a). The credibility of a witness represents

just such an ultimate issue normally decided by the jury.

Nor are we troubled by Vincent’s testimony that he

thought appellants engaged in “fraud” and “deceit,” be-

em eae tee INR Na 8 a

37a

cause it was clear from the content of his direct and

cross-examination that he used those terms in a non-legal

sense. Neither do questions arise as to the propriety of

testimony given by Wallis, because appellants highlight

no specific statement by him containing a legal conclu-

sion as to a specific ACSSP violation. Additionally,

because Wallis had an extensive background in aviation

security it was not an abuse of the trial court’s discretion

to permit him to testify regarding causation.

Pan Am’s next contention has greater merit. It de-

clares that plaintiffs’ witnesses improperly offered legal

opinions as to ACSSP violations. We agree that Vin-

cent’s statement as to his belief that Pan Am violated the

ACSSP is dubious. While an expert witness may testify

as to an ultimate fact issue the jury will decide, see Fed.

R. Evid. 704, the general rule is that an expert may

not testify as to what the law is, because such testimony

would impinge on the trial court’s function. See FAA v.

Landy, 705 F.2d 624, 632 (2d Cir.), cert. denied, 464

U.S. 895 (1983). Permitting an expert to give a legal

conclusion may implicitly provide a legal standard to

the jury. See generally Hygh v. Jacobs, 961 F.2d 359.

363-64 (2d Cir. 1992); 3 Jack B. Weinstein & Mar-

garet A. Berger, Weinstein’s Evidence § 704[02], at 704-

11 to 13 (1993). Thus, expert testimony expressing a

legal conclusion should ordinarily be excluded because

such testimony is not the way in which a legal standard

should be communicated to the jury. Vincent’s testimony

that he had been lead to the conclusion “that Pan Am

did indeed violate the ACSSP” embodied a legal conclu-

sion that crossed the fine line between a permissible con-

clusion as to an ultimate issue of fact and an impermis-

sible legal conclusion.

Having said this much, we hasten to add that the intro-

duction of Vincent’s statement was not in our view a

reversible error. First, defendants took no specific objec-

tioit to this statement. By failing to object when the

38a

statement was made, the objection was waived. See

Fed. R. Evid. 103(a)(1). Second, even had an objection

been timely made, the error was harmless. Cf. Hygh, 961

F.2d at 364 (testimony on ultimate legal conclusion found

harmless). Vincent’s testimony directly conveyed to the

jury that he was stating his own conclusion, it repre-

sented but a small portion of extensive testimony pro-

viding the basis for his opinion, and the trial judge

instructed the jury that it was the ultimate judge of

credibility and liability. Under the circumstances, this

error—even had there been a proper objection raised—

was harmless.

B. Detective Constable Henderson’s Testimony

Scottish Detective Constable Derek Henderson pro-

vided deposition testimony as to his work in the Flight

103 investigation. He was assigned responsibility for

matching certain bags—the ones that might have been

placed in the flight container that was determined to

have held the bag with the bomb—with passengers on

the aircraft. Henderson prepared his report largely

through compiling computerized records of bags. These

computerized records had been set up to amass reports

from passengers’ and crew members’ friends and relatives,

and from evidence obtained at the scene of the crash.

Appellants object to the admission of the detective’s

testimony and his report. Based on his analysis of pas-

senger records and information obtained from passengers’

and crew members’ friends and relatives, Henderson de-

termined that the Samsonite bag containing the bomb

was an unaccompanied bag from the Frankfurt flight.

Defendants moved to exclude his reports as based on

multiple layers of hearsay; Henderson had compiled his

reports based upon other officers’ reports of interviews

they had conducted in this necessarily lengthy and in-

volved investigation.

We believe the evidence was properly received under

Fed. R. Evid. 803(8)(C), which provides an exception

39a

to the hearsay rule for reports of public agencies con-

taining “factual findings resulting from an investigation

made pursuant to authority granted by law, unless the

sources of information or other circumstances indicate

lack of trustworthiness.” See also Beech Aircraft Corp. v.

Rainey, 488 U.S. 153, 167 (1988) (upholding broad

admissibility of facts in government reports, unless cir-

cumstances demonstrate lack of trustworthiness). The

determination as to any lack of trustworthiness remains

one properly left to the district court, id., and its decision

to admit a report under Fed. R. Evid. 803(8)(C) is

one that we will uphold absent a manifest error. See

Gentile v. County of Suffolk, 926 F.2d 142, 151 (2d

Cir. 1991).

Here there was no explicit finding of trustworthiness,

but no such finding is required before an official report

under Rule 803(8)(C) may be received. The plain lan-

guage of the rule establishes general admissibility, unless

a report is deemed to be untrustworthy. See Fed. R. Evid.

803(8) advisory committee’s note; Kehm v. Procter &

Gamble Mfg. Co., 724 F.2d 613, 618 (8th Cir. 1983).

The district court carefully examined the report and did

not make a finding of a lack of trustworthiness. Although

the trial court did provide a detailed consideration of

reliability concerns, it had no duty to state it found the

report trustworthy.

In any event, adequate evidence demonstrates trust-

worthiness in the case at hand. The Advisory Committee’s

Note on Rule 803(8) suggests several factors to consider

in determining trustworthiness: 1) timeliness of the in-

vestigation, 2) the investigator’s skill or experience, 3)

whether a hearing was held, and 4) possible bias or moti-

vation problems in the report. See Fed. R. Evid. 803(8)

advisory committee’s note. The investigation was timely,

Henderson was an experienced and skilled investigator,

and no bias may be presumed in the Scottish investiga-

tion. We cannot say the trial court abused its discretion

in entertaining the report, particularly given its caution-

ary instructions to the jury concerning the report.

40a

C. X-Ray Demonstration of Radio-Cassette Player

Pan Am and Alert also sought to include an x-ray

demonstration as part of their defense to show how clearly

a radio-cassette player would appear on the screen. Such

a demonstration was ultimately ruled irrelevant, given

plaintiffs’ offer to stipulate that a radio-cassette player

would be visible on an x-ray screen. Pan Am and Alert

nevertheless declare the demonstration would have gener-

ally supported Pan Am x-ray operator Kurt Maier’s testi-

mony that he x-rayed all the interline bags transferred to

Fight 103 in Frankfurt.

The x-ray demonstration would not have either shaken

or bolstered Maier’s testimony since he said he could not

remember whether any radios or cassette players appeared

in any of the bags on Flight 103. More important, be-

cause plaintiffs stipulated that a radio cassette player

would be clearly recognizable in an x-ray image the prof-

fered demonstration would have been cumulative, and

therefore inadmissible in the district court’s discretion

under Fed. R. Evid. 403. When a fact is undisputed and

conceded, evidence attempted to be introduced to prove

such fact may be excluded. See United States v. Edwards,

631 F.2d 1049, 1051, aff'd, 633 F.2d 207 (2d Cir. 1980).

Although some cases have upheld the admission of proof

respecting a conceded fact, the decision whether or not

to do so is a matter that rests within the discretion of

the trial court. See, e.g., United States v. Gantzer, 810

F.2d 349, 351 (2d Cir. 1987).

IV. DAMAGES FOR LOSS OF SOCIETY

AND COMPANIONSHIP

Pan Am and Alert’s last claims of error concern the

damage awards. In each of the three cases whose dam-

ages phases were tried the jury was permitted to award

compensatory damages to the decedent’s spouse and chil-

dren based on the loss of financial contributions, loss of

services, loss of society and companionship, and loss of

4la

parental care. Appellants do not dispute the awards for

the first two elements. But they contend that loss of

society and companionship damages are not available

under the Warsaw Convention, and that damages for the

loss of parental care should not be available to adult

children of crash victims.

As we noted in Lockerbie I, damages in a Warsaw

Convention case are governed by federal common law

principles consistent with the Convention’s terms. Locker-

bie I, 928 F.2d at 1278-79; see also Harris v. Polskie

Linie Lotnicze, 820 F.2d 1000, 1002 (9th Cir. 1989)

(“damages are to be measured according to the internal

law of a party to the [Warsaw] Convention”). Article 17

of the convention provides for recovery of compensatory

damages. See Warsaw Convention, art. 17; Lockerbie I,

928 F.2d at 1280-81. The first damages question to be

analyzed is whether compensatory damages under the

Convention include damages for loss of society and com-

panionship. This question is answered by an examination

of maritime law, which is probably the oldest body of

federal common law. See In re Mexico City Aircrash,

708 F.2d 400, 414-15 (9th Cir. 1983) (looking to gen-

eral federal maritime law in holding that the Warsaw

Convention creates a cause of action for wrongful death).

Appellants agree that maritime law is an appropriate

source of law for resolving this issue. But they would

have us look only to maritime cases brought under the

Death on the High Seas Act, 46 U.S.C. §§ 761-68

(DOHSA), and the Jones Act, 46 U.S.C. App. § 688,

which preclude recovery for loss of society damages. See,

e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 31-33

(1990). General maritime law cases that are not bound

by a statutory restriction, in contrast, allow recovery for

loss of society. See, e.g., American Export Lines, Inc. v.

Alvez, 446 U.S. 274, 280-83 (1980); Sea-Land Servs.,

Inc. v. Gaudet, 414 U.S. 573, 585-88 (1974).

42a

The distinguishing feature in these cases is that the

statutes, under which cases precluding loss of society

damages have been brought, either expressly limit

(DOHSA) or have been interpreted to limit (Jones Act)

damages to pecuniary loss. See Mobil Oil Corp. v. Hig-

ginbotham, 436 U.S. 618, 620-25 (1978) (loss of society

damages are not recoverable under DOHSA because Con-

gress explicitly limited survivors’ recovery to their “pecu-

niary losses”); Miles, 498 U.S. at 31-32 (loss of society

damages are not recoverable under Jones Act because

in incorporating the Federal Employer’s Liability Act

“Congress must have intended to incorporate the pecu-

niary limitation on damages as well”).

Because we cannot resolve this issue by reference to

the common law alone, in light of the conflict between

the statutory cases that deny loss of society and the gen-

eral maritime cases that, along with the majority of states,

permit recovery of damages for loss of society, we must

look to the Convention itself to determine which of the

maritime rules—statutory or general—is most consistent

with the language used and the intent of the parties to the

treaty. Analyzing Article 17 of the Convention, we look

first to its text. The Warsaw Convention has to be evalu-

ated by examining the governing text as drafted in French.

See Eastern Airlines, Inc. v. Floyd, 111 S. Ct. 1489, 1493

(1991); Air France v. Saks, 470 U.S. 392, 399 (1985).

The English language translation of Article 17 simply

provides, in relevant part, “The carrier shall be liable for

damage sustained in the event of the death or wounding

of a passenger... .” The original text of Article 17

provides for compensation for “dommage survenu;” the

accepted English language translation of this phrase is

“damage sustained.” See Warsaw Convention, art. 17; 49

U.S.C. § 1502 app. note (1988). No limit to pecuniary

loss appears in the text. The aim of the Convention’s

drafters and signatories appears from the simple language

of the text to provide full compensatory damages for any

injuries or death covered by the Convention. See In Re

43a

Korean Air Lines Disaster, 932 F.2d at 1486-7; Locker-

bie I, 928 F.2d at 1281.

While our sources from which to determine the signa-

tories’ intent is limited, scholarly treatises on the subject

agree that the French civil law recognized all sorts of

damages, pecuniary and nonpecuniary. See In re Korean

Air Lines Disaster, 932 F.2d at 1487 (citing G. Miller,

Liability in International Air Transport 112 (1977) and

R. Mankiewicz, The Liability Regime of the International

Air Carrier 157 (1981)). We encountered no under-

Standing in French law that might support limiting “dom-

mage survenu” to exclude loss of society awards.

In light of the broad language in the Warsaw Conven-

tion covering “damage sustained” and the lack of author-

ity suggesting that the drafters wanted to limit compensa-

tory damages to pecuniary loss, we are informed by gen-

eral maritime law principles set forth in Gaudet and its

progeny and hold the Warsaw Convention permits dam-

age awards for loss of society and compansionship. Accord

In re Korean Air Lines Disaster, 814 F. Supp. 592,

597-98 (E.D. Mich. 1993); In re Korean Air Lines Dis-

aster, 807 F. Supp. 1073, 1086-88 (S.D.N.Y. 1992).

Such holding does not completely dispose of the loss of

society damages issue, because the district court did not

in any way limit who was entitled to loss of society

damages.

Gaudet and Alvez allowed spouses to recover for loss

of society. See 414 U.S. at 574, 587-88; 446 USS. at 276.

In doing so, the Alvez court noted that this was consistent

with the majority of states’ permitting recovery to a wife

for loss of consortium, which incorporates loss of society,

from personal injury to her husband. See 446 U.S. at 284

& n.11. Lower federal courts have read these cases to

permit dependents to recover as well as spouses for loss

of society damages. See Miles v. Melrose, 882 F.2d 976,

989 (Sth Cir. 1989), aff'd 498 U.S. 19 (1990); Sistrunk

v. Circle Bar Drilling Co., 770 F.2d 455, 458-59 (5th

44a

Cir. 1985), cert. denied, 475 U.S. 1019 (1986); Ander-

son v. Whittaker Corp., 692 F. Supp. 734, 770-71 (W.D.

Mich. 1987), aff'd in part, rev'd in part, 894 F.2d 804

(6th Cir. 1990); Truehart v. Blandon, 672 F. Supp. 929,

932-33 (E.D. La. 1987), rev’d on other grounds, 884

F.2d 223 (5th Cir. 1989). But see De Loach v. Com-

panhia De Navegacao Lloyd Brasileiro, 782 F.2d 438,

441-43 (3d Cir. 1986) (declining to permit dependent

child to recover loss of society damages).

We find no maritime case extending loss of society

damages to plaintiffs other than spouses and dependents.

We therefore affirm the loss of society awards to the

Bainbridge and Porter families, since these families con-

sisted of only spouses and dependant children. But the

loss of society award to the Pagnucco family must be

vacated since some of the family members were adult

children and may or may not have been dependents. We

remand this limited issue as it applies to the Pagnuccos

to the district court for further proceedings consistent

with this opinion.

On the issue of damages for lost parental care, we also

must vacate and remand all three plaintiffs’ cases to the

district court because the district court erroneously in-

structed the jury on this issue. Damages for lost parental

care are considered a pecuniary loss and are therefore

recoverable. See Gaudet, 414 U.S. at 585. Appellants

correctly contend the district court erred in declining to

instruct the jury that damages for loss of fatherly care and

guidance must be limited to the period of a child’s minor-

ity, absent a showing of specific circumstances that the

father’s “guidance had a pecuniary value beyond the

irreplaceable values of companionship and affection.”

First Nat’l Bank in Greenwich v. National Airlines, Inc.,

288 F.2d 621, 624 (2d Cir. 1961). Since no such limita-

tion was charged to the jury on this damages issue, the

jury awards for loss of parental care may not stand.

On remand, the district court should instruct the jury

that it may take into consideration the care, attention,

45a

instruction, training, advice, and guidance the evidence

shows the father might reasonably have been expected to

give his children and to include the pecuniary value

thereof in the damages it assesses. The damages for such

loss must be limited to the period of a child’s minority,

absent a showing of specific circumstances that the father’s

guidance had a pecuniary value beyond that period.

CONCLUSION

The record of this trial is not a paradigm of a perfect

trial. The critical question though is whether the trial was

fair. Here we are satisfied upon an examination of the

entire record that defendants received a fair trial. Accord-

ingly, the jury verdicts as to liability are affirmed. How-

ever, the award for loss of society damages to the

Pagnucco family is vacated as are the awards for loss of

parental care in all three plaintiffs’ cases. These cases are

remanded to the district court for further proceedings on

the outlined damage issues consisent with this opinion.

VAN GRAAFEILAND, Circuit Judge, dissenting:

As I said when writing my dissent to the original major-

ity opinion, writing a dissenting opinion in the instant

case is not a pleasant task. My name will be anathema to

the hundreds of people who are seeking recoveries prob-

ably in excess of $1 billion, and my long-time friendship

with Judge Platt may suffer some stress. However, be-

cause I am convinced that Pam Am’ did not receive a

fair trial, I would be shirking my duties as a judge if I did

not say so. Before undertaking the unpleasant task of dis-

cussing where I believe the district court erred, I find it

necessary to undertake the even more unpleasant task of

commenting briefly upon my colleagues’ amended opinion,

1 The dissent will hereinafter refer to defendants Pan American

World Airways, Inc. and Alert Management Systems, Inc. as Pan

Am or defendant.

46a

a substantial portion of which is devoted to a rebuttal of

arguments that Pan Am never made.

Under the heading “The Alleged Oral Waiver” my col-

leagues state:

Defendants maintain that an FAA official granted

them an oral waiver excusing strict compliance with

certain FAA regulations, and that Chief Judge Platt

abused his discretion when he disallowed their evi-

dence purporting to demonstrate their belief in this

waiver.

The fact of the matter is that Pan Am made absolutely

no claim of waiver. It argued, and offered testimony to

prove, that what it sought and obtained from FAA offi-

cials was not a waiver, but an “interpretation” of what it

deemed an ambiguous regulation. One of the tasks of

Raymond Salazar, Director of Civil Aviation Security, and

his staff was to promulgate regulations and thereafter to

interpret them:

In that capacity we would—we, me, my staff

would promulgate regulations, would provide inter-

pretations, ...

Tr. 1254 (Salazar testimony). Interpretations of regula-

tions were not required to be in writing. See United

States v. Eastern Air Lines, Inc., 792 F.2d 1560, 1564

(11th Cir. 1986). Richard Cozzi, Pan Am’s Director of

Airport Security, described the practice as follows:

Q Is it your understanding, sir, that before a

change can be made to the ACSSP there has to be

an application in writing to the FAA?

A Yes.

Q. And that only when there is a written process

of an application and an approval by the FAA, that

the terms of the ACSSP can be changed?

47a

A That’s true if an airline is requesting a waiver or

something of that nature, yes. Not for an interpre-

tation.

Tr. 5624-25.

As will be discussed below, the district court clearly

erred in rejecting all evidence offered by Pan Am in

support of its contention that it received and relied upon

an oral interpretation from Salazar. Although my col-

leagues devote seventeen pages of their amended opinion

to a discussion of the “oral waiver,” “government author-

ization,” and “mistake of law” defenses, none of these

defenses was asserted by Pan Am or is relevant to the

pertinent issue herein.

The following excerpt from the index of Pan Am’s

brief is an accurate statement of the contentions that

Pan Am actually made:

Introduction and Summary -.....2....2.-020-00000000c0000-------. 21

I. THE DISTRICT COURT ERRONEOUSLY

EXCLUDED EVIDENCE SHOWING

THAT PAN AM LACKED THE STATE

OF MIND NECESSARY FOR A FINDING

OF WILFUL MISCONDUCT ................. 23

A. The Court Erroneously Excluded Evi-

dence That Pan Am Believed That It

Had Obtained An FAA Interpretation

That X-Ray Inspection Complied With

ee SE sda oe 25

1. The Evidence of the Oral Interpre-

tations Was Admissible to Show that

Pan Am Did Not Have the State of

Mind Necessary for a Finding of

Wilful Misconduct ...... : 26

2. The Evidence of Oral Interpretations

Was Admissible to Show Pan Am’s

Compliance with the ACSSP .............. 29

48a

a. The District Court Relied on In-

apposite Decisions . 29

b. No Written Application Was Re-

quired to Obtain an FAA Inter-

OU sii eaiatlatdin tik eeaniininee 31

Finally, on page 25 of their amended opinion, my col-

leagues come to the question of the defendant’s “State of

Mind,” which they acknowledge to be “the ultimate issue

in this Warsaw Convention case.” The following excerpt

from Mr. Cozzi’s excluded testimony will demonstrate

exactly how the “ultimate issue” was reached and re-

solved and why the district court erred in not permitting

the jury to hear the testimony:

Q When did the discussions of the Security Task

Force take place?

A Discussions concerning the possibility of using

x-ray to satisfy the ACSSP on interline baggage took

place at the very first or at least second Security

Task Force meeting.

The Security Task Force team was charged with

writing sealed procedures, our developing manuals,

and one of the very first things that Security Task

Force needed to know is that did x-ray of interline

baggage satisfy the ACSSP.

Q And what was done in that respect?

A That question was presented to Mr. Dan

Sonesen, and I must say that his first reaction was

doubtful.

However, we requested that he contact our PSI

[FAA Principal Security Inspector] or whatever level

was required within the FAA, and to report back to

the task force as to whether x-ray met that intent.

_ At a subsequent meeting, Mr. Sonesen—

49a

Mr. POuNIAN: Your Honor, I just want to

note our objection on the record for hearsay from

Mr. Soneseii.

THE CourT: Yes. It’s not admissible.

Mr. SHAUGHNESSY: May I continue?

THE CourRT: Yes.

Q_ Go ahead.

A Mr. Sonesen reported back at the subsequent

task force meeting that he had had conversation

with the FAA and requested interpretation of intent

and he came back and told us that, yes, x-ray did

in fact satisfy that section of the ACSSP.

Q Why did the task force seek this clarification?

Mr. POUNIAN: Objection to the question, as

clarification, your Honor. I think that it’s improper.

THE CourT: That’s the way they regard it,

as a Clarification of a statement that positive match-

ing was required. That’s their interpretation.

Mr. POUNIAN: I just think that it’s leading,

your Honor, in the context.

THE CourT: Sure, it is.

Q_ Why did you seek this clarification, Mr. Cozzi?

A We needed this clarification because the task

force was charged with writing manuals and develop-

ing procedures, and we needed to know what direc-

tion those manuals and procedures were to take.

Q And were you anxious to have x-ray approved

under Section XV.C.1.A.?

A We were not anxious to have x-tay approved.

We just needed to know what direction we were

going in: if it had come back that it was not

50a

approved, then we would have developed procedures

without utilizing x-ray.

As it turned out, we were told that it was ap-

proved, and we wrote the procedures accordingly.

Mr. PouNIAN: Your Honor, I’m going to have

to move to strike that answer, based upon hearsay

from Mr. Sonesen.

THE CourT: None of this is, in my opinion,

admissible either for hearsay reasons or for reasons

you've indicated.

Mr. POUNIAN: I’m just saying for the purpose

of presenting a record—

THE CourT: That’s his problem.

Mr. POoOuNIAN: I understand that, but I think

Mr. Sonesen has to present the record, not Mr.

CozzZi.

THE CourT: Even if they called Mr. Sonesen,

it would still be hearsay.

Mr. SHAUGHNESSY: Your Honor, the state of

mind is the issue here.

THE CourT: It would still be hearsay.

Mr. SHAUGHNESSY: Respectfully disagree, your

Honor.

THE CourT: You can’t develop a_ unilateral

state of mind.

Mr. SHAUGHNESSY: It is not a unilateral state

of mind. That’s the point.

Tr. 5617-19. The district court’s rulings on “hearsay”

and “unilateral state of mind” will be commented upon

below.

Because, as in my dissent to the original majority

opinion, I deem it necessary in the interest of uncontro-

Sla

vertible accuracy to quote at length from the record, I

will not prolong this opinion by an extended counter-

Statement of the facts. Indeed, what is perhaps the most

crucial fact has been established by stipulation:

[Pan Am] insisted that a bomb contained in a suit-

case would have been visible on x-ray. In fact, the

parties stipulated to that fact.

Majority opinion at 31.

It is worth noting, however, how this stipulation came

into being. After Pan Am was satisfied that it could

use X-ray examination of luggage, it purchased for the

Frankfurt airport the most expensive up-to-date x-ray

machine on the market, the Astrophysics Linescan X-ray

Screening System.

Q Does your company make a larger machine than

this?

A This is the largest machine we make.

Q Does your company make a more expensive

machine than this?

A_ No, sir.

Q At the time it was sold, was there a newer or

more advanced state of the art machine than this?

A_ No, sir.

Tr. 5689 (testimony of Derek Kemp, an Astrophysics

Company official).

Pan Am wanted the jury to see the machine and how

it operated, and for this purpose it had the machine

transported to the courthouse. For obvious reasons,

plaintiffs’ counsel did not want the jury to have the

benefit of this first-hand observation, and he stipulated

what an examination of the machine would have shown.

Although Pan Am should not have been required to

accept this stipulation in lieu of actual observation, see

SS ee

52a.

United States v. Gantzer, 810 F.2d 349, 351 (2d Cir.

1987), the district court gave it no choice. At the dis-

trict court’s direction, the machine sat in the basement

of the courthouse, alone and unobserved. The fact that

plaintiffs’ counsel objected to a jury inspection is evidence

in and of itself that the district court erred in not per-

mitting it.

Solely to demonstrate the danger of unquestioned re-

liance upon my colleagues’ often-pejorative statement of

facts, I address two excerpts from the majority opinion.

Starting on line 24 of page 27, my colleagues say:

The most wilful disregard of passenger safety, bor-

dering on the outrageous, was in December 1988

when Pan Am received an FAA Security Bulletin

advising that the United States Embassy in Helsinki

had received a telephone warning that a Pan Am

flight from Frankfurt to London and on to New

York would be bombed. (Helsinki Warning).

In pertinent part, the Helsinki warning, with letters

substituted for names, read as follows:

On December 5, 1988 an unidentified individual

telephoned a U.S. diplomatic facility in Europe and

stated that sometime within the next two weeks there

would be a bombing attempt against a Pan Amer-

ican aircraft flying from Frankfurt,FRG to the U.S.

An individual identified as “X”, who allegedly is in

Finland and a second individual identified only as

“Y” and is in Frankfurt, are involved. According

to the caller, “Y” will provide the device to “X”

who will in turn provide it to an unidentified Finnish

woman in Helsinki. The woman, would unwittingly

take the device to Frankfurt and eventually onto the

U.S. bound flight.

Plaintiffs’ Exhibit 33.

My colleagues’ discussion of the Helsinki warning is

in the nature of a half-truth that calls for exposition.

53a

Pan Am’s response to this warning, as described in the

testimony of Wolfgang Schwab, a Pan Am supervisor at

Frankfurt, was quite different than what my colleagues

would have us believe:

QUESTION: Prior to the Lockerbie disaster, had

it been brought to your attention that there was a

warning received by the United States Embassy in

Helsinki to the effect that a Pan Am Flight to the

United States would be bombed?

ANSWER: Yes.

QUESTION: Tell us, please, when and how that

was brought to your attention?

ANSWER: I am not able to give you the exact

point in time but it was certainly before Lockerbie,

when we were told that a female Finnish passenger

would try to smuggle a bomb aboard.

QUESTION: Where were you when this came to

your attention?

ANSWER: At the airport.

QUESTION: Where in the airport?

ANSWER: On the job.

QUESTION: Were you warned to pay particular

attention to all female passengers or only Finnish

female passengers?

ANSWER: \ Particularly to a female Finnish

passenger.

QUESTION: Did you ever issue any instructions

to look out for Finnish women or to pay particular

attention to Finnish women?

ANSWER: Yes, I did.

QUESTION: When was that?

ANSWER: Before Lockerbie.

54a

QUESTION: What instructions or suggestions did

you issue?

ANSWER: Now, I told the screeners and the staff

that they were to pay particular attention to female

Finnish passengers or woman coming from that re-

gion up there and I told them that one person would

try to smuggle a bomb aboard a plane.

QUESTION: Do you remember if you did it per-

sonally or if you asked someone else to do it?

ANSWER: _I did it personally.

Tr. 1525-27.

Perhaps even more troubling to me is my colleagues’

statement at page 28, line 17 of their opinion that the

Helsinki warning was “deliberately” placed under a pile

of papers on the desk of a Pan Am security officer.

Needless to say, no page citation to the record accom-

panied the word “deliberately.”

Because no changes made in a majority opinion can

alter the immutable record of the trial court, I now direct

my attention once again to what occurred below.

At one point near the end of the trial, Pan Am’s coun-

sel said to the court:

Now, Judge, I would tell you, on a scale of 1 to

10, doing what I want in this courtroom, I have

been about a minus 2, or maybe imaginary numbers

would be a better way to describe as the level to

which I have gone.

Tr. 5104.

I have read the record dispassionately, and I completely

agree with this observation. Plaintiffs’ attorneys were

permitted to range far and wide with prejudicial, irrele-

vant testimony, while Pan Am’s counsel was precluded

time and again from presenting relative and probative

Pe ee ee ee ee eS ee ee

55a

proof. Because I recognize that evidentiary rulings are

largely discretionary, I will limit my discussion to what

I deem the major reversible errors.

CONFLICT OF OPINION

At the outset, I want to state one clear and uncontro-

vertible fact: NO ONE KNOWS WHEN, WHERE OR

HOW THE BOMB GOT ON THE PAN AM PLANE

EXCEPT THE PERSON WHO PUT IT THERE.

The jury had to content itself with the expounding by

plaintiffs’ “experts” of what my colleagues correctly term

‘Plaintiffs’ Causation Theory” (Majority opinion at 38).

The accuracy of the supposition that a suitcase carrying

the bomb was sent unaccompanied from Malta to Frank-

furt, was transferred there to a Pan Am plane in which it

was flown to London, where it was transferred to the

plane in which it subsequently exploded, was a crucial

issue in the case, because “Plaintiffs’ Causation Theory”

was based upon Pan Am’s allegedly deficient baggage

checks during the two transfers. If there were no trans-

fers, there could not have been any wilfully deficient

Screenings. The district court permitted plaintiffs’ experts

to testify in support of the supposition but precluded any

testimony by defendant’s experts in opposition thereto.

Having reviewed this proposed testimony of Pan Am’s

experts that the district court kept from the jury, I am

convinced that had the jury been permitted to hear this

evidence, there is a strong likelihood it would have re-

jected plaintiffs’ contention that the bomb which exploded

began its deadly journey in Malta.

The jurors who undoubtedly had suffered through the

same experiences that many of us have, with missed

planes and lost luggage during connecting airline flights,

probably wondered how presumably clever and experi-

enced terrorists reasonably could have expected an un-

accompanied bag containing a bomb to travel from Malta

to Frankfurt to London, through at least two sets of bag-

56a

gage checks, to be smuggled finally aboard Pan Am Flight

103 and explode only after the plane had left London.

The jurors’ willingness to accept the plaintiffs’ theory

undoubtedly would have been influenced in large measure

by what Pan Am’s witnesses said.

Refutation of plaintiffs’ supposition was permitted from

Wilfred Borg, the general manager of ground operations

for Air Malta, one of the few witnesses produced by

defendant whose testimony was admitted:

Q Let me show you what we have marked as

Exhibits HF-1 through HF-15 in evidence. (Handing.)

A Thank you.

Q Looking at those exhibits, Mr. Borg, have you

ever seen them before?

A_ Yes, I did.

Q Would you tell the ladies and gentlemen what

those documents are, the whole package?

A That is the flight file or the ship’s papers for

Flight KM-180, destined to Frankfurt in Germany

on the 21st of December 1988.

Q When did you first see this particular flight file?

A_ I saw this flight file, the first time, in February

89.

Q What were the circumstances under which you

saw the flight file at that time?

A Our office in Germany had received a request

from the German police requesting us whether we

had any passengers or baggage connecting to Pan

American flights out of Frankfurt.

They said they were investigating this, they wanted

this information in view of the Lockerbie incident in

December, ’88.

57a

Q And what did you do with respect to their

request?

A_ The request was passed along to me by our

office in Germany.

I requested the manager responsible to keep these

records, to give me this relevant flight file. I went

through it and gave the relevant replies to the Ger-

man police.

Q_ What were those replies?

A We had no passengers connecting on the flights

out of Frankfurt.

We had no baggage destined to go in flights out of

Frankfurt.

And, we had no unaccompanied luggage on that

flight.

Tr. 5991-92.

Q. Now, sir, based upon everything that you’ve

read and all the investigation that you did, are you

able to tell this jury whether or not there was an

unaccompanied bag on Flight 180?

A. No, there was no such bag.

Q. Were there any bags destined for Pan Am, any

Pan Am flights?

A. No, there are no bags.

Q. Any passengers destined for any Pan Am flights?

Mr. BAUMEISTER: Objection, leading.

THE Court: Sustained. [??7]

Tr. 6041.

The following testimony of Dr. Ariel Merari of Tel

Aviv University, an expert on terrorism and bombing,

also would have shed unfavorable light on the Malta-

|

58a

Origin “theory.” However, this testimony was kept from

the jury.

Q. Do you think, sir, that it is conjectural how the

bomb got on board?

A. Could you please rephrase the question.

Q. Do you know how the bomb got on board?

A. No, I don’t.

Q. Do you think any, based upon the readings you

have done in this record, a fair-minded, honest, so-

called expert, with a reasonable degree of profes-

sional certainty, could opine how the bomb got on

board?

A. Well, of what I have read, including the trial

transcripts, I cannot see how anybody can say with

any degree of certainty how the bomb got on board.

Q. Do you have any level of familiarity with what

our government has been saying with respect to the

indictments of two Libyans?

A. Yes, I do.

Q. And have you had, to the extent you can discuss

this in this forum, a conversation with any repre-

sentatives of security or secret services of any govern-

ments on that subject?

A. Yee

Q. Has whatever knowledge that has come to you

through those discussions in any way changed your

view that an honest and reasonable chap cannot say

to a reasonable degree of professional certainty how

this bomb got on board? ,

A. No. I still feel that I don’t know how the bomb

got on board and I don’t think that at this particular

59a

stage, before more intelligence information comes in,

which may be a long time after the incident, in some

cases, I still feel that I don’t know how the bomb

got on board and I don’t think anybody knows for

sure or even in any degree of reasonable certainty

how the bomb got on board at this time, except for

the terrorists, of course.

Tr. 6259-60.

Q. Is it possible that a bomb was smuggled on

board Pan Am 103 by an unwitting courier?

A. I think it is.

Q. Has that possibility been widely discussed se-

cretly in the intelligence community?

A. Yes, it has.

Tr. 6258.

Even stronger refutation of the Malta theory was given

by Peter Gurney, a Scotland Yard bomb expert, whose

testimony also was kept from the jury:

Q. Let me ask you this: Do you have an opinion

based upon your review of the data made availabie

to you of the existence of the fire system that existed

in that Neus Toshiba bomb B 453 radio cassette?

A. Ido have an opinion.

Q. What is it?

A. I cannot see how such a device could have been

used on a multi leg journey with one of the earlier

legs being of longer duration than the flight on which

the explosion took place.

Tr. 4582.

Q. If you were a bomb designer wanting to blow up

Pan Am 103 over the Atlantic Ocean on [sic] off the

60a

coast of the United Kingdom would you use the Air

Malta routing suggested in this case?

A. [m not a bomb designer. We often have to

think like terrorist [sic] in order to combat them. I

would think that that was very unlikely because air

travel—there are many delays in air travel. Nor-

mally on the ground. So to work up the exact timing

t> get the thing to go off when you want it and not

have it go off on the ground could be extremely

difficult. This is used in a straightforward timer, sir.

Tr. 4588.

Finally, the defense made an unsuccessful offer of proof

of testimony by Noel Koch, a security consultant for the

United States Department of Defense. If Koch had been

permitted to testify on the subject, he would have said

that the Air Malta theory is “widely at variance with

modus operandi of Middle Eastern Terrorist attacks and

specifically attacks on U.S. airlines,” and that the “Air-

Malta theory involves far too many variables to jibe with

usual modus operandi.” He also would have testified that

the Pentagon relies on x-rays to scan baggage.

Admittedly, a district judge has wide discretion in

determining whether to admit evidence. However, this

discretion “may not be utilized to exclude the otherwise

admissible opinion of a party’s expert on a critical issue,

while allowing the opinion of his adversary’s expert on

the same issue.” United States v. Sellers, 566 F.2d 884,

886 (4th Cir. 1977). See also Breidor v. Sears, Roebuck

& Co., 722 F.2d 1134, 1141 (3d Cir. 1983). “Rule 403

requires even-handedness.” Goldberg v. National Life Ins.

Co., 774 F.2d 559, 565 (2d Cir. 1985) (citing Sellers

and Breidor, supra); see also United States v. Onumonu,

967 F.2d 782, 788-89 (2d Cir. 1992). The district

judge’s lack of even-handedness cannot be justified by his

reliance on the indictment of two unapprehended, un-

questioned and unapproachable Middle Eastern terrorists:

ih hao RAND CRF Sin 86 lt

61a

THE CourT: And I must view the evidence that

we're talking about in that light, not in the light of

a criminal case, because we’re not in a criminal case.

Mr. CopDINGTON: Exactly. And my submission

to you is that you may not give any evidentiary

weight to the fact of that indictment.

THE Court: No. But I may give evidentiary

weight, probable cause weight to the fact that a

grand jury has returned the indictment. Not in a

criminal case, but in the civil case, for purposes of,

I may not so instruct the jury, but as a qualifier from

my standpoint, I may give it that weight. In fact

I must.

Tr. 6187.

Neither can the lack of even-handedness be justified by

the district court’s treatment as “facts” of evidence that

my colleagues correctly characterize as theory and sup-

position.

THE Court: The narrow question for this jury is

given the facts in this case—and we know it’s a

Toshiba radio and as to which there has been a spe-

cific warning and in which the bomb was, and there

was a specific warning about the bomb being placed

on a flight and so forth. Those specific warnings and

not as to some other possible bomb, but as to that,

how you handled it and how you handled it in

Frankfurt and how you handled it in London Heath-

row, the general lax procedures which they have

described, if they find all of that to be wilful mis-

conduct which was the proximate cause of the crash,

that’s the issue for them to determine.

Tr. 5297-98. Needless to say, the “facts in this case”

were to be determined by the jury, not the judge.

Because the house of cards to the effect that the bomb

entered the stream of commerce in Malta was constructed

62a

entirely of opinion testimony introduced by plaintiffs,

simple justice required that defendant’s experts be given

an opportunity to demolish it. Obviously any testimony

concerning how the bomb got on the plane had to be

conjectural. However, the burden of proof on this issue

was on the plaintifis, not the defendant. Pan Am never-

theless offered expert testimony to challenge plaintiffs’

contentions, which the district court refused to receive.

There can be no question but that conflicting expert

testimony is admissible and that the jury, not the judge,

decides how much weight to accord each expert’s testi-

mony. United States v. Luschen, 614 F.2d 1164, 1170

(8th Cir.), cert. denied, 446 U.S. 939 (1980). As one

court put it, “court records are full of the conflicting

opinions of doctors, engineers and accountants, to name

just a few of the legions of expert witnesses.” United

States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970), cert.

denied, 401 U.S. 994 (1971); see also In re “Agent

Orange” Product Liability Litigation, 818 F.2d 145, 172

(2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988).

“The mere fact that there may be conflicting testimony

by experts is not a sufficient basis to exclude such evi-

dence.” United States v. McBride, 786 F.2d 45, 51 (2d

Cir. 1986). Pan Am’s proposed experts did not attack

the credibility of plaintiffs’ experts; they disagreed with

the probative sufficiency of those experts’ testimony. The

weight to be accorded the testimony of each expert was

a matter for the jury to decide. United States v. Vitale,

549 F.2d 71, 74 (8th Cir.), cert, denied, 431 U.S. 907

(1977).

If Pan Am’s experts were correct in opining that no

expert could testify with any degree of reasonable cer-

tainty how the bomb got on the plane, the district court’s

refusal to permit Pan Am’s experts to so testify meant

that the district court deprived Pan Am of all means of

contesting the testimony of plaintiffs’ experts on this im-

portant issue. The constitutional implications of such a

63a

result are obvious. “[T]he admission of a report contain-

ing ‘conclusions’ is subject to the ultimate safeguard—the

opponent’s right to present evidence tending to contradict

or diminish the weight of those conclusions.” Beech Air-

craft Corp. v. Rainey, 488 U.S. 153, 168 (1988). Denial

of this “ultimate safeguard” in the instant case was preju-

dicial reversible error.

WILFUL MISCONDUCT

A carrier covered by the Warsaw Convention cannot

limit its liability to $75,000 if a plaintiff's damages were

caused by the carrier’s “wilful misconduct.” Wilfulness as

thus used involves the issue of intent, not an intent to

violate an FAA regulation, but the intent to perform an

act with knowledge that it probably will result in injury

and with disregard of that probable consequence. See

Grey v. American Airlines, Inc., 227 F.2d 282, 285 (2d

Cir. 1955), cert. denied, 350 U.S. 989 (1956); see also

Ospina v. Trans World Airlines, Inc., 975 F.2d 35 (2d

Cir. 1992), cert. denied, 113 S. Ct. 1944 (1993). The

violation vel non of an FAA regulation, even if inten-

tional, is not determinative of the issue of wilful miscon-

duct under the Convention. Berner v. British Common-

wealth Pacific Airlines, Ltd., 346 F.2d 532, 537 (2d Cir.

1965), cert. denied, 382 U.S. 983 (1966). The issue of

wilfulness or wrongful intent is an issue of fact to be

resolved by the jury. Floyd v. Eastern Airlines, 872 F.2d

1462, 1489 (11th Cir. 1989), rev’d on other grounds,

499 U.S. 530 (1991); Pekelis v. Transcontinental &

Western Air, Inc., 187 F.2d 122, 124 (2d Cir.), cert.

denied, 341 U.S. 951 (1951); Hill v. United Airlines,

550 F. Supp. 1048, 1056 (D. Kan. 1982); In re Pago

Pago Aircrash of January 30, 1974, 419 F. Supp. 1158,

1160 (C.D. Cal. 1976). Because the issue of intent, or

state of mind, is crucial in any determination of wilful

misconduct, the following generalizations concerning proof

of intent will be helpful in the discussion that follows.

64a

It is well established that a person’s state of mind is a

fact question to be proved the same as any other fact.

Chicago & N.W. Ry. Co. v. McKenna, 74 F.2d 155, 158

(8th Cir. 1934). The state of a person’s mind is as much

a fact as the state of the person’s digestion. Rogers v.

Virginia-Carolina Chemical Co., 149 F. 1 (3d Cir. 1906)

(citing Edgington v. Fitzmaurice, 29 L.R. Ch. Div. 459).

Accordingly, a defendant generally is permitted to testify

concerning his motive, belief and intent. McKenna, supra,

74 F.2d at 158. “Where a defendant’s intent is in issue

he should be permitted to testify as to his motive and

actual intent or state of mind.” United States v. Hayes,

477 F.2d 868, 873 (10th Cir. 1973). Such evidence

cannot be excluded on the ground that it is self-serving.

United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944).

In Crawford v. United States, 212 U.S. 183, 204-05

(1909), which involved an alleged conspiracy to defraud

the United States, the charge was made that the defendant

took some correspondence from a corporate file for the

purpose of destroying evidence against him. Defendant’s

attempt to explain that he took the letter for a lawful

purpose was rejected. The Supreme Court held that “[n]o

material and proper evidence upon that issue should have

been excluded, and the error committed was not, in our

opinion, clearly shown to have been harmless.” In United

States v. Harris, 942 F.2d 1125 (7th Cir. 1991), which

involved the question whether money paid to the defend-

ant was intended as a gift, the court held that the trial

court erred in rejecting letters that accompanied the pay-

ment on the ground they were hearsay. /d. at 1131. The

court said that “[the defendant’s] belief about [the letter

writer’s] intent decides the issue of willfulness, which is

an element of the offense.” Id. See also United States v.

Detrich, 865 F.2d 17, 21 (2d Cir. 1988); United States

v. Kohan, 806 F.2d 18, 21-22 (2d Cir. 1986); United

States v. Kyle, 257 F.2d 559, 563 (2d Cir. 1958), cert.

denied, 358 U.S. 927 (1959); Fed. R. Evid. 803(3).

In United States v. Rubin, 591 F.2d 278 (Sth Cir.), cert.

tt

65a

denied, 444 U.S. 864 (1979), the defendant was convicted

of embezzling union funds by taking unauthorized salary

increases. One of his defenses was lack of criminal intent.

Because the facts of that case are strikingly similar to the

facts of the instant case, I quote in full that portion of

the Fifth Circuit’s opinion which found the rejection of

the proffered evidence to be reversible error:

One of Rubin’s defenses in this case was lack of

criminal intent. He claimed that because he inter-

preted the unions’ constitutions as allowing the Salary

increases, he was unaware that the increases were

actually unauthorized. The constitutions, however,

appear clearly to mandate a different procedure for

obtaining salary increases from the procedure fol-

lowed by Rubin. To explain why he nonetheless

believed the salary increases were authorized, Rubin

testified that his understanding was that the constitu-

tions were not to be interpreted literally. Rubin

wanted to explain further that both present and past

presidents of the unions, those individuals given the

duty of interpreting the constitutions, had told him

that the constitutions were flexible, living documents

that could be interpreted to fit the needs of a par-

ticular local. The trial judge excluded this testimony

as hearsay.

The Federal Rules of Evidence define hearsay as

“a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”

Fed. R. Evid. 801 (emphasis added). As Rubin ex-

plained at trial, he did not offer the statements to

prove the truth of the matter asserted, but instead to

prove that he had heard them and to establish their

effect on his mind. See Dutton v. Evans, 400 USS.

74, 88, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Thus,

Rubin’s proffered testimony was not hearsay, and

66a

because it was relevant to his state of mind, it should

have been admitted. See Fed. R. Evid. 401 & 402.

Id. at 283.

A court has no right to reject testimony dealing with a

person’s state of mind because it deems the testimony

incredible or lacking in persuasive force. See Western

Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198,

1202 (7th Cir. 1984); Ballou v. Henri Studios, Inc., 656

F.2d 1147, 1154 (Sth Cir. 1981). Credibility and be-

lievability are for the jury, not the judge. United States v.

Thompson, 615 F.2d 329, 332 (Sth Cir. 1980); see also

Bowden v. McKenna, 600 F.2d 282, 284-85 (1st Cir.),

cert. denied, 444 U.S. 899 (1979). “In the first place,

credibility is a question for the jury; to permit the judge

to exclude evidence on the ground that he thinks it in-

credible would be a remarkable innovation and may even

be a violation of the right of trial by jury.” Wright &

Graham, Federal Practice and Procedure: Evidence § 5214

at 265-66.

The concern expressed in the above authorities was

reiterated by the Supreme Court in the case of Cheek v.

United States, 498 U.S. 192 (1991), where it said at 203:

Knowledge and belief are characteristically questions

for the factfinder, in this case the jury. Characteriz-

ing a particular belief as not objectively reasonable

transforms the inquiry into a legal one and would

prevent the jury from considering it. It would of

course be proper to exclude evidence having no rele-

vance or probative value with respect to willfulness;

but it is not contrary to common sense, let alone

impossible, for a defendant to be ignorant of his duty

based on an irrational belief that he has no duty, and

forbidding the jury to consider evidence that might

negate willfulness would raise a serious question

under the Sixth Amendment’s jury trial provision.

The pertinence of the above legal generalizations in

the instant case is readily apparent. It cannot be gain-

67a

said, for example, that resolution of the issue of wilfulness

involves consideration by the jury of the mental proc-

esses of Pan Am officials. As stated above, the state of

mind of these officials was a fact question to be proved

the same as any other fact, and the district judge had no

right to reject testimony dealing with this fact because

he deemed it incredible or unpersuasive. As the Supreme

Court said in Crawford v. United States, supra, no ma-

terial and proper evidence upon the issue of the defend-

ant’s intent should have been excluded, and the error

committed by such exclusion was not harmless. 212 U.S.

at 205. We echoed this language in Vinieris v. Byzantine

Maritime Corp., 731 F.2d 1061 (2d Cir. 1984), where

we held that, because the issue of wilfulness was a crucial

issue in the case, the trial court should have followed a

liberal policy in admitting evidence directed toward that

issue and that “[n]o evidence which bore even remotely

on this issue should have been kept from the jury unless

it interjected tangential and confusing elements which

clearly outweighed its relevancy.” Id. at 1064. In United

States v. Brandt, 196 F.2d 653 (2d Cir. 1952), we re-

versed a mail fraud conviction, in language almost iden-

tical to that used in Vinieris, because the trial court

rejected evidence aimed at establishing the defendant’s

intentions. Jd. at 657. Cf. Mutual Life Ins. Co. v.

Hillmon, 145 U.S. 285, 294-98 (1892). See also 29

Am. Jur.2d Evidence § 361, where the applicable rule

is stated in language almost identical with that used in

V inieris:

Any evidence which has a material bearing upon

the intent with which a person acted and which fairly

tends to a disclosure thereof, or which is explana-

tory of the intent or purpose with which an act was

done, or is to be done, is admissible.

The record is clear that both the district court and

plaintiffs’ counsel had ample notice of Pan Am’s intention

to offer evidence of Sonesen’s conversation with Salazar

68a

concerning the propriety of using x-ray screening. This

intent was stated unambiguously in paragraphs 63-65

of the pretrial order:

63. In late 1986 or early 1987, Daniel Sonesen,

System Director-Corporate Security and co-chair-

man of the Security Task Force, at the request of

the other Security Task Force members, conferred

with the FAA concerning the use of X-ray security

screening of interline baggage at Pan Am European

stations and whether the X-ray security screening of

such baggage met the requirements of Section

XV.C.1.(a) of the ACSSP.

64. At that time, the FAA permitted X-ray se-

curity screening of many items, and the FAA ad-

vised Mr. Sonesen that X-ray security screening of

interline baggage met the requirements of Section

XV.C.1.(a) of the ACSSP.

65. Mr. Sonesen reported back to the Security

Task Force that the FAA had said that X-ray

screening of interline baggage met the requirements

of Section XV.C.1.(a) of the ACSSP.

Moreover, both the court and plaintiffs’ counsel had

copies of Sonesen’s pretrial depositions in which he testi-

fied about his conversation with Salazar. Plaintiffs’

counsel also had in his possession a copy of an E-mail

message from Sonesen to Pan Am security officers that

read as follows:

PER MESSAGE OF 10 MAR-88 ANSWER: THE

DIR. FAA R SALIZAR HAS GRANTED X RAY

AS AND [sic] ALTERNATE TO SEARCHING

PASS. BAGGAGE.

Knowing what Sonesen’s testimony would be, plain-

tiffs’ counsel decided to meet the evidence head on by

placing the E-mail message in evidence as part of his

affirmative case. He then offered the following testimony

from Salazar:

69a

Question: This document is something more

than that, doesn’t it, sir? It says that you granted

X-ray as an alternative, doesn’t it?

Answer: Yes, that is what the document says.

Question: You just said to me you _ never

granted that to Mr. Sonesen?

Answer: That’s correct, I did not.

Question: You had never even spoken to Mr.

Sonesen, did you?

Answer: About this issue, I have no specific

recollection of speaking to Mr. Sonesen about this

issue.

Question: Therefore, sir, if you didn’t grant per-

mission to Mr. Sonesen, and he said in this docu-

ment you did, isn’t that a lie?

Answer: It is an improper interpretation.

Question: It is an improper interpretation. I

am not talking interpretation now of the procedures,

I am talking about the statement: R. Salazar

granted.

Is that statement accurate?

Answer: No, it is false.

Question: So that statement, as it goes, R.

Salazar has granted, is a lie.

A Voice: Objection.

Answer: Again, it is only what—I can say it

is here. It is a misrepresentation. It is not an

accurate depiction of the requirements for air car-

riers operating out of those stations.

70a

Question: Can we agree that when Mr. Sonesen

said that you had granted, in this phrase, that that

was a falsehood?

Answer: That was a falsehood.

Tr. 1279-80.

On the basis of Salazar’s testimony, the district judge

made a colossal blunder by a sua sponte ruling that was

so contrary to established legal precedent and simple

justice that it smacked of a due process and Seventh

Amendment violation—he declared that he would receive

no testimony from Sonesen or any other Pan Am em-

ployee in support of Sonesen’s assertion of what Salazar

had told him. Sonesen, whose proposed testimony was

an important part of Pan Am’s defense, was branded

a liar, and the district judge precluded Pan Am from

attempting to prove that he was not. So far as the jury

knew, a substantial part of Pan Am’s defense was built

upon a lie, or as plaintiffs’ counsel described it in sum-

mation, “a concocted piece of baloney.” Tr. at 6395.

The district court correctly charged the jury that “the

violation of FAA regulations and safety standards .. .

would not necessarily constitute willful misconduct.” Tr.

6557. However, because of the district court’s erroneous

exclusions of evidence, this portion of its charge became

meaningless. The district judge treated this case as if

Pan Am were being prosecuted for criminally violating

a federal statute and, relying on his erroneous interpreta-

tion of criminal law, precluded every attempt by Pan

Am to demonstrate that it did not know or believe

that the probable result of its conduct would be injury

to the plaintiffs.

THE CourT: This whole thing starts at page 65

and it goes right on through to page 78 and it leads

up to the very question we have been discussing now

for days, namely, the FAA, the alleged FAA verbal

authorization.

Tila

I don’t see what this has got to do with the price

of beans, what his understanding of the ACSSP

procedures are. He’s not in court here. The regu-

lations speak for themselves.

I don’t see what basis this comes in under any-

place.

Mr. SHAUGHNESSY: Your Honor, this is a will-

ful misconduct case.

THE CourT: I know it’s a willful misconduct

case, but willful misconduct is not excused by Sone-

sen’s version of an oral permission which is not

admissible in the FAA. It is not admissible. And

that’s all this is.

Tr. 3958-59.

THE CourT: Whether it be offered for the pur-

pose of authority or willfulness or anything else, it

is out.

22. Soak

THE CourT: It just doesn’t make any sense to

me that anybody in his right mind would rely—

would, in fact did rely on any such permission. It

just didn’t exist.

Tr. 4789.

Mr. SHAUGHNESSY: So I take it that all of the

conversations among these people are out?

THE CourRT: Obviously they’re not objecting to

it, but I’m going to sustain those three questions

that he’s objected to and I’m going to—you might

as well know now that I’m going to sustain the

questions and answer on page 78.

Mr. SHAUGHNESSY: I understand, your Honor.

72a

THE CourT: And anything else that they object

to in between [’m going to sustain because I think

it’s irrelevant.

Tr. 3962.

The district judge even precluded Pan Am from show-

ing that FAA officials inspected Pan Am’s operations

both before and after the bombing and made no com-

plaints of irregularities. The district judge’s ruling on

this issue is illustrative of his mind-set.

THE CourT: Im satisfied, Mr. Shaughnessy, this

is another back-door method of getting Mr. Sonesen’s

unilateral interpretation of his authority to bury the

FAA regulations before this jury. I don’t like you

doing it.

I think the next time you attempt to do it you

should alert the Court that this is what you're

attempting to do. I have ruled upon it.

Had you gotten this before the jury before alerting

me and one had been asleep, I probably would have

had to declare a mistrial. We’re six weeks into this

trial.

The law has been stated by me to be that based

upon two Second Circuit decisions, both of which

went to the Supreme Court and certiorari was de-

nied, you have promised me that you were going |

to show me the law was otherwise. You haven’t.

You may not do this.

I don’t know how I can make myself clearer.

Mr. SHAUGHNESSY: All I wanted was to ask the

witness—

THE CourT: You attempted to get this FAA

report in before this jury with, knowing that this

man was operating under this assumption, that what

73a

they were doing was correct and was in direct vio-

lation of the FAA regulations, and he was doing

it on the basis of this verbal authorization of Mr.

Sonesen who said he had reached him.

According to FAA officials, testified he didn’t

have, and the regulations themselves say he couldn’t

have, and you can’t do it.

You do it again and I’m going to have to take

appropriate action.

Tr. 4365-66.

FAA’s policy in looking for violations of its regulations

is well known:

. . . [W]hen we feel there is a serious violation or

serious numbers of violations that requires significant

deterrent effect, we have been forced to go out and

scrape up every possible violation of the Regulations

that is appropriate in order to compute these large

penalties.

Testimony of Clark Onstad, Chief Counsel, FAA

before the Subcommittee on Aviation of the Com-

mittee on Public Works and Transportation, House

of Representatives, 96th Cong., 2d Sess. July 1,

1980, Record of Hearing on H.R. 7488 at 38.

FAA vy. Landy, 705 F.2d 624, 638 (2d Cir.), cert. de-

nied, 464 U.S. 895 (1983) (Van Graafeiland, J., con-

curring in part and dissenting in part).

A threat of contempt for attempting to introduce evi-

dence that FAA officials who, after personally inspecting

Pan Am’s operations found no fault with them, is pretty

strong medicine. However, it illustrates once again that

the district judge was fully aware of what Sonesen’s tes-

timony would have been. For further evidence of this

knowledge, see the following excerpts from the record:

THE Court:

T4a

As I understood, your position is somebody in the

FAA, I don’t know who, told Sonesen or somebody

in Pan Am verbally once they had the x-ray machine

they didn’t have to physically search a couple of

bags.

Mr. SHAUGHNESSY: That’s correct.

THE Court: That is your position.

Mr. SHAUGHNESSY: I understand.

Tr. 1138-39.

THE Court:

Mr. Sonesen’s testimony was, as I recall it, and it’s

right here before us, Sonesen’s testimony was that I

got this verbal permission from Salazar, we discussed

it up and down the hierarchy which would include

these discussions here right up to what’s his name.

Tr. 3960.

THE CourT: Salazar had the authority, but there

has been nothing produced in writing and Sonesen

said he got it orally and he acted on it orally and he

told all of these people that he had the authority from

the FAA and it’s irrelevant what he told people in the

Pan American organization on this subject, because

he didn’t have the authority.

Tr. 3961.

I regret that my colleagues, in their zeal to support the

outcome of an obviously unfair trial, advance the falla-

cious argument that a formal proffer of Sonesen’s testi-

mony was essential. See Massachusetts Mutual Life Ins.

Co. v. Brei, 311 F.2d 463, 465 n.1 (2d Cir. 1962);

Charter v. Chleborad, 551 F.2d 246, 248-49 (8th Cir.),

cert. denied, 434 U.S. 856 (1977).

My colleagues go equally astray in arguing that Pan

Am waived its objection to the district judge’s erroneous

75a

exclusion of evidence by refusing to accept the following

offer of the district court made after two months of trial:

On the so-called verbal authorization, I didn’t

think they would be able to come up with any cases.

Of course, they haven’t come up with any cases,

which changes the law in this circuit.

If they want me to give the jury an instruction to

disregard the testimony that came in at the outset of

the case before I understood what the issue was, I

will be glad to give that instruction.

But I rather suspect they don’t want me to high-

light it at this point. But if they want me to, I will be

glad to tell them that they are to disregard any such

conversations between Salizar [sic] and they are to

draw no inference one way or the other from it be-

cause it is irrelevant to this case, and Sorenson [sic].

But it is not admissible.

Tr. 4787-88.

This offer was an obvious, but inevitably unsuccessful,

attempt by the district court to mitigate its earlier blunder.

The district court knew that plaintiffs’ expert witness,

Rodney Wallis, had the pertinent portions of Salazar’s tes-

timony recorded on acetate, which Wallis displayed to the

jury during what Pan Am’s counsel accurately described

as Wallis’s pre-summation summation. In the course of

this lengthy summation, a questionable practice at best,

Wallis made the following comments concerning Salazar’s

testimony:

And the reason I selected these was because I

talked of violation, and this was showing me what

the violation was.

Tr. 2945.

And I picked that out because, as I say, to me, it

pointed me in a direction. It indicated what was the

requirement.

Tr. 2947.

76a

So. This was saying to me what the rules were,

what the requirement was.

Tr. 2948.

So, that was the message that I was getting from

the Salazar testimony, ...

Tr. 2949.

The above-quoted testimony, which constituted a “posi-

tive assessment of the trustworthiness and accuracy” of

Salazar’s testimony, clearly should not have been admit-

ted. United States v. Scop, 846 F.2d 135, 142 (2d Cir.

1988), and see modified opinion in Scop, 856 F.2d 5 (2d

Cir. 1988), emphasizing inadmissibility. However, it was

admitted, and neither the district court nor plaintiffs’

counsel suggested that the jury might be instructed to dis-

regard it. This was understandable, of course, because of

the important role that Salazar’s testimony played in Wal-

lis’s opinion.

Moreover, the suggested instruction that the jury dis-

regard “any such conversations between Salazar and they

are to draw no inference one way or the other from it

because it is irrelevant to this case,” followed by the state-

ment that Sonesen’s testimony remains inadmissible, sim-

ply demonstrates the district court’s misunderstanding of

the law. An instruction to the jury that the conversation

between Sonesen and Salazar was irrelevant and should

be disregarded would deprive Pan Am of one of its major

defenses, i.e., its lack of wilfulness based on that very

conversation. The undeniable fact is that the subjective

proof of Sonesen’s understanding was highly relevant,

and Pan Am’s counsel would have been foolish to stipu-

late otherwise. Pan Am’s counsel’s refusal to leap at the

court’s suggestion demonstrates that he had a better under-

standing of the applicable law than the district court or

my colleagues have demonstrated.

Time and again, Pan Am’s counsel explained his posi-

tion to the district court, all to no avail:

Tla

The meetings that are referred to there, testimony

of Mr. Sonesen, I don’t know whether Mr. Baumeis-

ter is going to read any of his deposition, was that

there was a discussion at that meeting and that at

that meeting Mr. Salazar said specifically that in con-

nection with ICAO 514 and London Heathrow Air-

port in particular, that x-ray was a suitable alterna-

tive to the bag match.

Now this is a willful misconduct case, your Honor,

in which Mr. Sonesen, the plaintiffs are claiming they

willfully disregarded this provision, 15C1(a). If the

jury believes Mr. Salazar that in fact the discussion

was limited to ICAO 514, they still could believe that

Mr. Sonesen, based on the meeting and what was dis-

cussed, could have believed, legitimately believed,

that x-ray was a suitable alternative and that Mr.

Salazar had said that.

This is a willful case, your Honor.

Tr. 1294-95.

The district judge never budged from his misunder-

standing of the law:

THE CouRT:

The proposition before us is that Sonesen says—

Sonesen not being Pan Am corporation, about whom

we are talking, but only an employee of Pan Am.

Sonesen says he got verbal permission from Salazar.

The cases are quite clear, that that is inadmissible

under the issue of lawfulness or otherwise, and I have

never seen anything at the moment, recently, that

casts any doubt on it.

Tr. 3376.

Tue Court: Ever heard the expression, an indi-

vidual may not bind the government?

ed

‘18a

Mr. CODDINGTON: Ever heard the expression

that an individual may not bind the government?

Yes, I have.

THE CourT: The government enacted a regula-

tion or promulgated a regulation, I may not take off

my robe, I may not work until executive capacity

authorizes to make that. United States against

Sorenson [sic] regulates, while on this subject, said:

Whoever had the authorization from the DIA and

C.I.A. to smuggle guns to Russia, and so forth and

so on, and the 2d. Circuit upheld, may not do that

verbally. That’s the law.

This theory of yours, if you have verbal authoriza-

tion from somebody to violate a regulation, I will

have to charge the jury that an individual may not

do that.

Mr. CODDINGTON: Well, certainly ’'m happy to

brief that.

THE CourT: Brief it all you want, because I

sweated blood over this issue, because this was really

quite serious. This was the business of taking arma-

ments from this country and swapping it over from

Russia, all on the okay of D.I.A. and C.I.A., And I

wouldn’t let them put that defense before the jury,

and the 2d. Circuit said I was right. I went through a

tremendous amount of research and wrote an opinion

on this, and it was published, United States -vs-

Schwartz. You may not as an individual authorize

somebody to do something against the regulation,

whether you are high-ranking. I don’t think the Presi-

dent may do it. I didn’t have to decide.

Tr. 3219-20.

THE CourT: In any event, nobody approved this

in writing.

So the whole defense is a non-entity.

79a

I know you don’t want to get rid of it from your

mind, but there it is. If you want to stop the trial and

mandamus me to the Second Circuit and have your

ears pinned back, fine.

But that’s it, that’s the ruling, you’ve got to live

with it. You’ve got to stop trying to sneak it in

through the back door or I’m going to have to take

appropriate action.

Tr. 3965.

THE CouRT:

You might have some validity to it ifi—if there was

any kind of an acknowledgment from Salazar that

he—that he had any such conversation, but he

emphatically denies it.

Everybody says it is-not within anybody’s power

to give it or—and the regulation itself says you’ve

got to have any modification in writing.

It just doesn’t make any sense to me that anybody

in his right mind would rely—would, in fact did rely

on any such permission. It just didn’t exist.

Tr. 4789.

The cases of United States v. Duggan, 743 F.2d 59

(2d Cir. 1984), United States v. Schwartz, 924 F.2d 410

(2d Cir. 1991) and United States v. Berg, 658 F. Supp.

253 (E.D.N.Y. 1987) (affirmed in part by Schwartz,

supra), so heavily relied upon by the district court and

my colleagues, do not support their interpretation of the

applicable law. Those cases involved alleged violations

of criminal statutes, not the tort issue of whether the

defendant wilfully placed the decedents in a position of

danger. Moreover, as we stated in Duggan, 743 F.2d at

83, “[t]here is an exception [to the mistake of law rule]

for legitimate reliance on an official interpretation of law.”

See, e.g., United States v. Laub, 385 U.S. 475, 487 (1967)

(“Ordinarily, citizens may not be punished for actions

80a

undertaken in good faith reliance upon authoritative as-

surance that punishment will not attach.”); see also United

States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655,

675 (1973). Finding in Duggan that the defendants had

not received an “official interpretation of the law” we

held that the defense of mistake of law was not available

to them. See 743 F.2d at 83-84. We returned to that

theme in United States v. Schwartz, supra, where we said:

Since Schwartz had no authority to authorize the

crimes charged against them, Berg and Lisbona may

not claim reliance on whatever account he might

have given them.

Id. at 422. The authority of Raymond Salazar, Director

of FAA Office of Civil Aviation Security, to interpret

regulations which he and his staff had promulgated can-

not be disputed.

My colleagues, I suggest, also err in their interpretation

of Cheek, supra, to the effect that the holding therein

applies only to tax cases. Cheek stands for the general

proposition that “the standard for the statutory willfulness

requirement is the ‘voluntary, intentional violation of a

known legal duty.’” 498 U.S. at 201 (citations omitted).

It also holds that a good-faith belief that one is not vio-

lating the law, if it is to negate wilfulness, need not be

objectively reasonable.

Knowledge and belief are characteristically questions

for the factfinder, in this case the jury. Characteriz-

ing a particular belief as not objectively reasonable

transforms the inquiry into a legal one and would

prevent the jury from considering it.

Id. at 203.

Wilfulness, in short, is a question of fact for the jury.

See Floyd v. Eastern Airlines, Inc., supra, 872 F.2d at

1489; Pekelis v. Transcontinental & Western Air, Inc.,

supra, 187 F.2d at 124; see also United States v. Ingredi-

8la

ent Technology Corp., 698 F.2d 88, 97 (2d Cir.), cert.

denied, 462 U.S. 1131 (1983). A trial judge cannot take

the question from the jury and answer it himself by apply-

ing his own objective standard of wilfulness. This is the

clear holding of Cheek. See also Ratzlaf v. United States,

114 S. Ct. 655 (1994), where the Supreme Court inter-

preted the language of 31 U.S.C. § 5322, which forbids a

person from wilfully violating the antistructuring provi-

sions of sections 5322(a) and 5324. Justice Ginsburg,

writing for a five-judge majority, said: “To establish that

a defendant ‘willfully violat{[ed]’ the antistructuring law,

the Government must prove that the defendant acted with

knowledge that his conduct was unlawful.” Jd. at 657;

see also id. at 633 n. 19.

We would be blinking reality if we did not hold that

the district judge’s erroneous rulings were prejudicial.

Indeed, as disclosed by the following excerpt from the

argument on appeal, plaintiffs’ counsel admitted as much:

JUDGE VAN GRAAFEILAND: Let me ask you this,

Mr. Kreindler: If I read the record, I listen to your

argument and I read the record, and I decide that

Judge Platt said ’'m not going to hear from Mr.

Sonesen no matter what, would you concede that that

is very prejudicial error in this case?

Mr. KREINDLER: Under those circumstances, yes.

But that’s not what happened. That’s—

JUDGE VAN GRAAFEILAND: I’m not asking you

that. I’m asking you if I read this record and I de-

cide that that is what happened—leave this offer of

proof business out—if I decide that Judge Platt just

simply said, I'm not going to hear Mr. Sonesen, that

would be prejudicial error; wouldn’t it, in this case?

Mr. KREINDLER: Your Honor, even—

JUDGE VAN GRAAFEILAND: Counsel, wouldn’t it

be prejudicial error?

82a

Mr. KREINDLER: Of course, if the judge were

hearing—

JUDGE VAN GRAAFEILAND: Of course, it would.

Then we have got the issue: did he refuse to hear

him, or didn’t he?

Mr. KREINDLER: No.

JUDGE VAN GRAAFEILAND: All right, that’s the

issue. I'll read the record very carefully, Mr.

Kreindler.

Moreover, the district judge himself recognized the cru-

cial importance of Sonesen’s testimony when he said,

“You're in trouble if this is your defense.” Tr. at 3355-56.

No one, I suggest, can dispute the proposition that

even-handedness is the sine qua non of a fair trial. A

trial is not a “game of blindman’s buff.” United States v.

Procter & Gamble Co., 356 U.S. 677, 682 (1958). It is

a “search for the truth.” 8 Wright and Miller, Federal

Practice and Procedure § 2001 at 14. That search will

succeed only if the trial court recognizes the right of each

party to present its evidence and to rebut that of its oppo-

nent, a right that “is a fundamental element of due process

of law.” See Washington v. Texas, 388 U.S. 14, 19

(1967). It is a rule as old as the proverbial hills that

when a party opens a subject in its case in chief, its

opponent is entitled to offer evidence on the same subject,

i.e., to explain, repel, counteract or disprove the evidence

that the party introduced. See, e.g., United States v.

Touloumis, 771 F.2d 235, 241 (7th Cir. 1985); United

States v. Finis P. Ernest, Inc., 509 F.2d 1256, 1263 (7th

Cir.), cert. denied, 423 U.S. 893 (1975); United States

v. Mallis, 467 F.2d 567, 569 (3d Cir. 1972); Luttrell v.

United States, 320 F.2d 462, 464 (Sth Cir. 1963); 1

Wigmore on Evidence § 15 at 740.

In view of the definitive holding of the Supreme Court

in Cheek, supra, that a good-faith misunderstanding of

83a

the law or a good-faith belief that one is not violating the

law need not be objectively reasonable in order to negate

wilfulness, the district court’s ruling for the “425th time”

that Salazar’s verbal permission was “not in this case,”

Tr. 3959, was clearly and prejudicially erroneous.

Even my colleagues concede that the district court erred

in excluding evidence of British Airway regulations which,

in the face of bombings by Irish terrorist organizations,

permitted Pan Am and other carriers to x-ray unaccom-

panied baggage at Heathrow Airport. I regret that in my

colleagues’ apparent eagerness to affirm, they hold this

error to be harmless. It was not harmless. It went

squarely to a crucial issue in the case, i.e., whether Pan

Am knew that its use of x-ray screening probably would

result in injury.

Evidence that, shortly after the Lockerbie accident the

FAA amended its regulations so as to clarify the permis-

sible use of x-ray screening, also went squarely to the

issue of whether Pan Am should have anticipated danger

in its pre-amendment use of x-rays. The district court’s

refusal to permit the jury to receive this evidence exacer-

bated all of the court’s similar rulings that pervaded the

trial. In short, it was another indication that the district

court misunderstood the law. The issue was not whether

Pan Am violated the regulation; it was whether Pam Am

used x-ray screening with knowledge that its use would

probably result in injury or in reckless disregard of the

probable consequences.

DAMAGES

In my dissent to the original majority opinion, I ex-

pressed concern over my colleagues’ handling of the

question of damages. However, since my colleagues now

agree that the cases must be returned to the district court

for retrial on the issue of damages for loss of society and

parental care, I will not repeat what I have already said.

~

84a

CONCLUSION

Whenever, as here, an appellate court affirms a judg-

ment based on opinion and conjecture, it faces the nag-

ging possibility that someday the truth will out and prove

the conjecture wrong. If the erroneous judgment was the

culmination of a fair trial, the appellate court, although

unhappy with its role in the error, need have no feeling of

guilt or remorse. This would not be true if the errors

below either were ignored or termed “harmless.” Needless

to say, I do not want someday to find myself in the latter

unhappy situation.

If all of the irrelevant and prejudicial evidence dealing

with such matters as television commercials and the pri-

vate lives of Pan Am employees, together with the col-

loquies of court and counsel arising out of the district

court’s “425” erroneous rulings, were eliminated from this

case, it could be retried in several weeks. My colleagues

now agree that the case must be retried in part on the

issue of damages. Particularly in view of the fact that the

outcome in over two hundred claims hinges upon the

judgment in the instant case, justice demands that the

matter be remanded in its entirety so that it can be tried

fairly.

Except for the remand to the district court on the

damages issue, I dissent.

854

APPENDIX B

[Filed Sep. 12, 1994]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 12th day of Sep-

tember, one thousand nine hundred and ninety four

Docket Nos. 92-9251, 92-9253, 92-9255

IN RE: AIR DISASTER AT LOCKERBIE SCOTLAND

ON DECEMBER 21, 1988

JuDITH A. PAGNUCCO

Vv.

PAN AMERICAN WORLD AIRWAYS, INC.

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein

by counsel for the defendants-appellants, Pan Am World

Airways, Inc., and Alert Management Systems,

Upon consideration by the panel that heard the appeal,

it is

86a

Ordered that said petition for rehearing is DENIED,

except to the extent indicated in the revised majority opin-

ion of September 12, 1994, and

It is further noted that the suggestion for rehearing

in banc having been transmitted to the judges of the Court

in regular active service, and to any other judge that

heard the appeal, and a poll of said judges having been

taken, a majority of the Court has voted not to reconsider

the decision in banc.

FoR THE COURT

/s/ George Lange III

Clerk

87a

APPENDIX C

[Filed Oct. 28, 1994]

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

United States Courthouse

Foley Square

New York 10007

George Lange III

Clerk

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 28th day of Oc-

tober one thousand nine hundred and ninety-four.

Dkt. No: 92-9251

JuDITH A. PAGNUCCO, Individually and as Executrix of

the Estate of ROBERT I. PAGNUCCO, deceased; MOLENA

A. PorRTER, Individually and as Administratrix of the

Estate of WALTER L. PORTER, deceased; and DONA

BARDELLI BAINBRIDGE, Individually and as Administra-

trix of the Estate of Harry M. BAINBRIDGE,

Plaintiffs-A ppellees,

—— *

PAN AMERICAN WORLD AIRWAYS, INC., and

ALERT MANAGEMENT SYSTEMS, INC.,

Defendants-A ppellants.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

appellant Defendants-Appellants.

884

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing

is DENIED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges for the court in

regular active service and to any other judge that heard

the appeal and that no such judge has requested that a

vote be taken thereon.

FoR THE COURT

GEORGE LANGE III

Clerk

by: /s/ George Lange III

Chief Deputy Clerk

" Te a a ee ee ee ~,

wf Pe ee ee ee ae ee ee en eee

Bs

a

=

e.

89a

APPENDIX D

[Filed Oct. 28, 1994]

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

United States Courthouse

Foley Square

New York 10007

GEORGE LANGE III CORRECTED

Clerk

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 28th day of Oc-

tober, one thousand nine hundred and ninety-four.

Dkt No: 92-9251

JuDITH A. PAGNUCCO, Individually and as Executrix of

the Estate of RoBERT I. PAGNUCCO, deceased; MOLENA

A. PorTER, Individually and as Administratrix of the

Estate of WALTER L. PORTER, deceased; and Dona

BARDELLI BAINBRIDGE, Individually and as Administra-

trix of the Estate of HARRY M. BAINBRIDGE,

Plaintiffs-A ppellees,

-V-

PAN AMERICAN ‘Wor.Lp ArRways, INC., and

ALERT MANAGEMENT SYSTEMS, INC.,

Defendants-A ppellants.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

Defendants-Appellants,

90a

Upon consideration by the panel that decided the ap-

peal, and Judge Van Graafeiland having refrained from

voting on said petition, it is ordered that this petition for

rehearing is denied.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges for the court in

regular active service, and to any other judge that heard

the appeal and that no such judge has requested that a

vote be taken thereon.

For THE COURT

/s/ George Lange III

GEORGE LANGE III

Clerk

lta yr eG ON pe Sita Neem Py AES

9la

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

United States Courthouse

40 Foley Square—Room 1702

New York, N.Y. 10007

George Lange III General Information

Clerk (212) 791-0103

November 2, 1994

Lee S. Kreindler, Esq. James Shaughnessy, Esq.

Steve R. Pounian, Esq. Windels, Marx, Davies & Ives

Kreindler & Kreindler 156 W. 56th Street

100 Park Avenue New York, NY 10019

New York, NY 10017-5590

Clinton H. Coddington Richard M. Sharp, Esq.

Coddington, Hicks & Danforth Shea & Gardner

555 Twin Dolphin Dr. - Suite 300 1800 Massachusetts Ave., N.W.

Redwood City, CA 94065 Washington, DC 200386

Freddi Lipstein, Esq.

Rm 3127, Main Bldg.

U.S. Department of Justice

Civil Division - Appellate Staff

10th St. & Constitution Ave., N.W.

Washington, DC 20530

Re: 92-9251

Dear Counsel:

At the request of Judge Van Graafeiland, we are send-

ing you herewith copies of the memoranda submitted by

him in connection with the two petitions for rehearing

filed in this matter.

Very truly yours,

/s/ George Lange III

GEORGE LANGE III

Clerk

GLIII/yb

Enclosure: Two memoranda

cc: Panel

Hon. Jon O. Newman, Chief Judge

92a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 92-9251

In Re: Air Disaster at Lockerbie Scotland

(Vote on petition for rehearing)

The original majority opinion in this matter was filed

on January 31, 1994. My dissent to this opinion was filed

on February 18, 1994. Appellants petitioned for rehear-

ing on February 28, 1994, and I suggested in banc re-

view on April 15, 1994. While the in banc application

was pending, the majority prepared an amended opinion

and I, of necessity, prepared an amended dissent.

Appellants’ petition for rehearing now brings to the

fore the “serious misgivings” that I expressed concerning

the procedure adopted in handling my request for in banc

review at the time the majority proposed to file its

amended opinion. It was my belief that once the majority

filed an amended opinion, appellants’ petition for rehear-

ing of the original opinion and my request for in banc

review of the denial of that petition became moot and that

appellants should be permitted to file a new petition for

rehearing addressed to the amended opinion. Instead, it

was decided that neither the amended majority opinion

This text is long and has been trimmed here. Open the source document for the complete record.