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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1126

## Text

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

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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

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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 statem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0888%3A2. Public record. Not legal advice.