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

97 118.0 JAN 1 4 1998

No OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

¢

NAN OLDHAM, (EDWARD OCAMPO),

Petitioner,

KOREAN AIR LINES CO., LTD.,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

¢

EDWARD OCAMPO’S

PETITION FOR WRIT OF CERTIORARI

*

JuANiItaA M. Mapo_e LAWRENCE GOLDHIRSCH

SPEISER, KRAUSE, MADOLE LAWRENCE GOLDHIRSCH, P.C.

& Cook 180 Maiden Lane

(Counsel of Record) New York, New York 10038

One Park Plaza, Suite 470 (212) 558-5500

Irvine, California 92614

(714) 553-1421

Attorneys for the Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ar

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review are:

1. Does the Circuit Court’s decision requiring

DOHSA survivors in two-earner households to provide

decedent’s predeath contributions conform to this Court's

rulings and those of other Circuits?

2. Is the Circuit Court’s decision compelling proof

of predeath contributions in two-earner households

archaic in light of modern reality where couples pool

their earnings and do not keep mathematical records

showing apportioning of income to family members?

il

LIST OF PARTIES IN THE PROCEEDING BELOW

A. PETITIONER

Petitioner is Edward Ocampo, the Personal Represen-

tative of the Estate of Suellen Ocampo, who was killed

while a passenger on board KE007 on September 1, 1983.

Petitioner was Appellant in appeal No. 94-5323 and

94-5324, United States Court of Appeals for the District of

Columbia Circuit, which was consolidated by the Circuit

with Nan M. Oldham, 94-5321, 94-5338, and Marsha J.K.

Maikovich, 94-5371, 94-5382. The published Circuit Court

decision is under the caption Oldham v. Korean Air Lines

but only Appellant Edward Ocampo petitions for writ of

certiorari. Petitioner, Edward Ocamp, believes that neither

of the other Plaintiff-Appellees/Cross-Appellants, Nan

M. Oldham or Marsha J.K. Maikovich, have any interest

in the outcome of the Petition.

B. RESPONDENT

Respondent Korean Air Lines Co., Ltd. is a member

of the Hanjin Group of Korea, which comprises com-

panies under common management direction. The 23

affiliated companies of the Hanjin Group are:

Hanjim Transportation Co., Ltd.

Hanil Development Co., Ltd.

Hanjin Shipping Co., Ltd.

Jungsuck Enterprise Co., Ltd.

Korea Air Terminal Service Co., Ltd.

Air Korea Co., Ltd.

Jedong Industries, Ltd.

Hanjin Travel Service Co., Ltd.

Hanjin Construction Co., Ltd.

Korea Freight Transportation Co., Ltd.

LIST OF PARTIES IN THE PROCEEDING

BELOW - Continued

Hanjin Data Communications Co., Ltd.

Hanil Leisure Co., Ltd.

Hanjin Information Systems & Telecommunica-

tions Co., Ltd.

Pyung Hae Mining Development Co., Ltd.

Cheju Mineral Water Co., Ltd.

Union Express, Ltd.

Hanjin Heavy Industries Co., Ltd.

Femtco Shipping Co., Ltd.

Oriental Fire & Marine Insurance Co., Ltd.

Korean French Banking Corporation-SOGEKO

Hanjin Investment & Securities Co., Ltd.

Inha University Foundation

Jungsuck Foundation

eee

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... |

LIST OF PARTIES IN THE PROCEEDINGS BELOW .. ii |

A. PRYOR. gs a a ii |

G. ROSIN i Sa ere a ii |

TAMIL OP ARTOIS cs sss cnc env seeoes co vi

PETITION FOR WRIT OF CERTIORARI..........-. 1

OPO WRN oe a a. 1

WIM Ss. oaks isicctieten aad 1

PROVISIONS OF LAW INVOLVED ..............-- 2

STATEMENT OF THE CASE................-2.000: 2

A. NATURE OF THE CASE ...............000005. 3

B. PROCHBDINGS BELOW .........060000.0050058 4

REASONS FOR GRANTING THE PETITION....... 5

NEERING RES Rs 7

A. NO EXACT PROOF OF A DECEDENT’S PRE-

DEATH CONTRIBUTIONS TO A FIVE MEM-

BERS HOUSEHOLD IS REQUIRED IN A

WRONGFUL DEATH CASE WHERE THERE IS

COOTE SSR re Rn 0 6 a Gears chec'eny ss 8

B. THE COURT’S CHARGE ON LOSS OF SUPPORT

WAS IRRELEVANT IN VIEW OF THE FACT IT

HAD GRANTED A DIRECTED VERDICT ON

THAT ISSUE AND NO LINE WAS PROVIDED

TO THE JURY ON THE VERDICT SHEET ..... 14

TABLE OF CONTENTS - Continued

Page

C. THE RECOVERY IN THIS SUIT WAS NOT “FAIR

OR JUST COMPENSATION FOR THE PECUNI-

PS SAPS PS EETNE SCC a ec Se hati ee re tecs 16

CA OED Si ck vo aces hckhuek pakueayeeeanees eens 17

vi

TABLE OF AUTHORITIES

Page

CASES

Chesapeake & Ohio Railway Company v. Kelly, 241

CD SI CISD oe ce vcccncscceta¥ Grad Senge cves cc 6, 13

Civil v. Waterman SS Corp., 217 F.2d 94 (2d Cir.

TIO 0:09 once vascanestcass ix immiaphesteabawiceens 13

Dugas v. National Aircraft Corp., 438 F.2d 1386 (3rd

CAE. BOGUS ioe ccc cvenesienscssyasnuweapeeeesseesees 13

First National Bank in Greenwich v. National Air-

lines, 288 F.2d 621 (2d. 1960) cert. denied, sub

nom. Kessler v. National, 368 U.S. 859 (1961)....... 12

Gonzalez v. N.Y.C. Housing Authority, 77 N.Y. 2d

OG, Sra WEE. De Se eee ei ie ve nsievccicendienks 10

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

S52 FAG 2655 COG... CR TOPE) oo ov vncins cnciveiaves 4

Michigan Central Railroad v. Vreeland, 227 U.S. 59

GRE 6 a's 6 ose cane 0sx004teeken eee iaee manera

Michigan Central Ry. Co. v. Kelly, 241 U.S. 485

SEES coals <cta5 50s bw R con aeeseas Caan 6, 9

Oldham v. Korean Air Lines Co., Ltd., __ F.3d __

1997, U.S. App. LEXIS 26102 (D.C. Cir. 1997) ...... 1

Petition of Mariana Mercante Nicaraguenesa, 248

F.Supp. 15, 26-27 (SDNY, 1965), aff'd 364 F.2d

2 | eer rere ro ery er aera 11

Petition of Risdale & Anderson Inc., 591 F. Supp. 353

Fire Gs NN, SE Coo os Cine cubes cee cea 11

Vii

TABLE OF AUTHORITIES - Continued

Page

Railroad Company v. Barron, 5 Wall. 90 (1866)........ 10

Santiago v. Isbrandtson, 204 F. Supp. 777 (SDNY,

1962), aff'd, 312 F.2d 241 (2d Cir. 1963) ........... 13

Sea-Land Services v. Gaudet, 414 U.S. 573, 39

Se en ODE Fo CP HRVS TRS Seen Sep DER Cee eee 6, 8

S.S. Black Gull, 90 F.2d 619 (2d Cir. 1937) cert.

denied, Faye v. American Diamond Lines, 302 U.S.

Pe MEU E ths EOCCRV Sb cwhet cob ies sass ache osees 6, 12

Wade v. Rogla, 270 F.2d 280 (3rd Cir. 1959)........ 6, 13

Whitaker v. Blidberg Rothchild Company, 296 F.2d

Pee OE A PE oir'y 6d ve vat estab tonne dais bars 6, 10

Zicherman v. Korean Air Lines, 116 S. Ct. 629 (1996) ...2, 3

STATUTES

Death on the High Seas Act (DOHSA), 41 Stat. 539

(1988 ed.), 46 U.S.C. App. § 761 et seq. 1988 .. passim

Lord Campbell’s Act (9 & 10 Vict. C93 (1846))....... 8

Warsaw Convention, formally known as The Con-

vention for Unification of Certain Rules Relat-

ing to International Transportation by Air, 49

Stat. 3000, T.S. No. 876 (1934), reprinted in 49

Sees I SR Was ae ek bes vous ks eN bebe eee es 2

PETITION FOR WRIT OF CERTIORARI

Petitioner, Edward Ocampo, respectfully requests

that a writ of certiorari issue to review the judgment and

opinion of the United States Court Appeals for the Dis-

trict of Columbia Circuit entered on September 23, 1997,

Petition for Rehearing and Suggestion for Rehearing En

Banc denied on November 6, 1997.

4

OPINIONS BELOW

The opinion of the Court of Appeals for the District

of Columbia Circuit has not yet been officially reported.

See, Oldham v. Korean Air Lines Co., Ltd., ___ F.3d __ 1997,

U.S. App. LEXIS 26102 (D.C. Cir. 1997) (reprinted in

Appendix at 1-26) Petition for Rehearing and Suggestion for

Rehearing En Banc denied November 6, 1997 (reprinted in

Appendix at 27). The opinion of the Court of Appeals for

the District of Columbia Circuit involved three consoli-

dated actions, i.e. Nan M. Oldham v. Korean Air Lines Co.,

Ltd., No. 94-5321, 94-5338; Ocampo v. Korean Air Lines Co.,

Ltd., No. 94-5323, 94-5324; and Maikovich v. Korean Air

Lines Co., Ltd., No. 94-5371, 94-3382. Only petitioner,

Edward Ocampo, petitions this court for a writ of cer-

tiorari.

JURISDICTION

The judgment of the Court of Appeals was entered

on September 23, 1997 and petitioner’s timely Petition for

Rehearing and Suggestion for Rehearing En Banc was

rejected on November 6, 1997. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1). Jurisdiction of

the Court of first instance was pursuant to 28 U.S.C.

§ 1331, Federal Question Jurisdiction, and 28 U.S.C.

§ 1332, Diversity of Citizenship Jurisdiction.

+

PROVISIONS OF LAW INVOLVED

This case arises under the Warsaw Convention, for-

mally known as The Convention for Unification of Cer-

tain Rules Relating to International Transportation by Air,

49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C.

§ 40105 note. The locus of the death, on the high seas,

requires damages for the wrongful death cause of action

be governed by the Death on the High Seas Act

(DOHSA), 41 Stat. 539 (1988 ed.), 46 U.S.C. App. § 761 et

seq. 1988 as interpreted by this Court in Zicherman v.

Korean Air Lines, 116 S. Ct. 629 (1996).

¢

STATEMENT OF THE CASE

Petitioner, Edward Ocampo, sued Korean Air Lines

Co., Ltd. in the United States District Court for the Dis-

trict of Columbia claiming damages for the wrongful

death of his wife, Suellen Ocampo, while she was a

passenger on board Korean Air Lines Flight 007 on Sep-

tember 1, 1983. Suellen Ocampo was traveling on a ticket

such that the resulting claims were governed by the War-

saw Convention. After the trial of this matter in the

District Court, and while the appeal was pending in the

ee

District of Columbia Circuit, this Court decided Zicher-

man v. Korean Air Lines, 116 S. Ct. 629 (1996), a case which

involved another passenger on the same ill-fated aircraft.

-Pursuant to this Court’s decision in Zicherman, wrongful

death claims for all of the passengers on board KE007 are

governed by the Death on the High Seas Act.

A. NATURE OF THE CASE

This action involved the wrongful death of a pas-

senger, Suellen Ocampo, who was killed together with

her two minor children and mother while en route on

KE007 from New York to Seoul, South Korea and onward

to the Philippines. Suellen Ocampo was a 39 year old

licensed pharmacist who, in the year prior to her death,

was earning a salary of approximately $32,000. Her 29

year old husband was earning approximately $19,000 as a

clerk. The couple had two children ages 2 and 4 and lived

in a house they had purchased in Staten Island. The

decedent’s 55 year old mother lived with the family and

took care of the children while the couple were away at

work during day. Mr. Ocampo’s case went to trial in 1993

for the wrongful death of his wife only as the claims for

the children’s deaths were settled years ago for

$75,000.00.

Uncontroverted expert testimony at trial revealed

that the decedent’s wages and fringe benefits less her

personal consumption and consumption expenses for

their children until the age of majority, and less federal

and state income taxes, would have been $492,701.00

from the date of her death to the time of trial and approx-

imately $1,300,000 from the time of trial to retirement.

The couple had joint bank accounts into which they

each put all their respective earnings and from which

Mrs. Ocampo paid the bills. With monies deposited from |

the savings they used $20,000 to purchase a home jointly. |

A panel of the District of Columbia Court affirmed

the trial Court’s granting KAL a directed verdict on the

issue of “loss of pecuniary benefits” or “financial contri-

butions” because “Mr. Ocampo failed to present any evi-

dence that would demonstrate the extent to which he

personally benefited from the decedent’s earnings” dur-

ing decedent’s lifetime. The D.C. Circuit said: “In this

case, Mr. Ocampo failed to provide any evidence that

would indicate how much of his wife’s earnings would

redound to his benefit as compared to that of his children

and mother-in-law. Thus, the District Court properly

directed a verdict for KAL on that issue”. (Slip. op. at

24-25).

B. PROCEEDINGS BELOW

Decedent, Suellen Ocampo, was killed together with

268 other passengers and crew on KE007. Numerous

actions were filed as a result of the disaster and consoli-

dated for liability proceedings. See generally, In re Korean

Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C.

Cir. 1991). After all liability proceedings were concluded,

this case was returned to the United States District Court

for the District of Columbia, per the Honorable Aubrey E.

Robinson, Jr., for trial in May 1993. During the course of

the trial proceedings, the District Court granted Korean

Air Lines’ Motion for a Directed Verdict, deleting the

claim for loss of support, on the grounds that the plaintiff

husband had not made a proper showing of the amount

of loss of support that he solely had suffered as a result of

his wife’s death. Testimony was presented in the District

Court to the effect that Mr. and Mrs. Ocampo both

worked and used their joint income to support them-

selves, their two children, and Mrs. Ocampo’s mother,

Joveta Putong, who resided with them. The District Court

held that Mr. Ocampo had not presented evidence of

exactly how much of his wife’s earnings went directly to

his individual support as compared with the amounts she

contributed needed to support the rest of the family, i.e.

her mother and two children. The result was to require

plaintiff, and any future surviving spouses in similar

circumstances, to prove with some mathematical evi-

dence, a decedent’s predeath contributions to a sole sur-

vivor in order to prove prospective losses, all contrary to

established law in assessing damages for wrongful death.

+

REASON FOR GRANTING THE PETITION

The Petition should be granted because the D.C. Cir-

cuit’s decision addressing the evidentiary basis required

to establish a reasonable expectation of “loss of support”

in a wrongful death case is contrary to long established

precedent in how to assess damages in wrongful death

cases. This case involved the death of the wife in a two-

earner household in which she and her husband pooled

their earnings for their mutual support and that of their

minor children. The issue is of critical importance given

the prevalence in today’s society of circumstances in

which both the husband and the wife must work and

earn income to provide for themselves and their family.

Under the D.C. Circuit’s analysis, it will be impossible in

the future for the surviving spouse in two-earner house-

holds to ever establish proper damages in wrongful death

cases if one spouse and the children are killed. All too

often spouses and minor children are traveling on air-

planes or in cars when an accident happens. If the Panel’s

analysis is permitted to stand, the vast majority of surviv-

ing spouses in two-earner households working hard to

support themselves and their children will be foreclosed

from ever obtaining damages for the wrongful death of a

deceased spouse and would completely negate the ame-

liorative reasons that legislatures across the country pass

wrongful death statutes in the first place.

The D.C. Circuit’s decision is directly contrary to

well established law relating to recoverable damages in

wrongful death cases and, given the harsh effect in other

cases where both spouses work to support their children.

The Petition for Writ of Certiorari should be granted

because the D.C. Circuit’s decision is contrary to this

Court’s decisions in Michigan Central Ry. Co. v. Kelly, 241

U.S. 485, 489 (1916), Sea-Land Services v. Gaudet, 414 U.S.

573, 584 (1974), Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S.

485 (1916). It is contrary to other Circuits’ decisions. See,

Whitaker v. Blidberg Rothchild Co., 296 F.2d 545 (4th Cir.

1961), S.S. Black Gull, 90 F.2d 619 (2d Cir. 1937), Wade v.

Rogla, 270 F.2d 280 (3d Cir. 1959).

¢

ARGUMENT

The D.C. Circuit’s decision is the first in a wrongful

death case in American jurisprudence requiring mathe-

matical proof of predeath contributions in order to prove

prospective losses. In light of the fact plaintiff was the

only family survivor, such proof should not have been

required. Courts have consistently held that predeath

contributions are just some evidence of what may have

occurred in the future. The Death on the High Seas Act

(DOHSA) does not even require a showing of depen-

dency for recovery by a spouse, child or parent, yet that

proof was required by the trial court and affirmed by the

D.C. Circuit. DOHSA requires proof of pecuniary loss

only to “persons for whose benefit the suit is brought”:

i.e. the surviving spouse in this case, not deceased chil-

dren. Moreover, it is an axiom of tort law that the circum-

stances to be considered in assessing damages in an

action for wrongful death are fixed at the time of the

death. When Mrs. Ocampo was killed, so were her two

children and mother.

The standard of proof that the D.C. Circuit requires

belies modern reality where two spouses must work to

support their families. Typically, both husband and wife

pool their earnings for the benefit of all members of the

family. Under normal circumstances, it would be impossi-

ble for a surviving spouse to prove with the certainty the

D.C. Circuit apparently requires exactly how much of the

electric bill went for his benefit when all in the family

used the lights and watched television or how much of

the food bill went for his meals or what part of any other

shared expenses was for his sole use.

When Lord Campbell’s Act (9 & 10 Vict. C93 (1846))

and its progeny, such as the Death on the High Seas Act,

were enacted the typical family was a working husband

who provided complete financial support for his wife and

children. When he was killed, the loss of financial sup-

port could be readily determined by analyzing his earn-

ing capacity reduced by his personal consumption. For

two-earner households where one spouse and the chil-

dren are killed, the process is not as simple, but surely

the standard of proof is not as onerous as the D.C. Circuit

would require. A negligent wrongful death is, by defini-

tion, an unanticipated event to the family. The family

cannot be expected to keep the kinds of individual

expense records the D.C. Circuit’s decision implies would

be required.

A. NO EXACT PROOF OF A DECEDENT’S PRE-

DEATH CONTRIBUTIONS TO A FIVE MEM-

BER HOUSEHOLD IS REQUIRED IN A

WRONGFUL DEATH CASE WHERE THERE IS

ONLY ONE SURVIVOR.

The measure of damages in a Death on a High Seas

case is governed by statute, 26 U.S.C. 762 which provides

awards for “a fair and just compensation for the pecuniary

loss sustained by the persons for whose benefit the suit is

brought__” [emphasis supplied].

This statute permits the decedent’s survivors to

recover damages for their “pecuniary loss” which has

been defined to include loss of support. Sea-Land Services

v. Gaudet, 414 U.S. 573, 584, 39 L.Ed2d 9, 21 (1923). Recov-

ery for loss of “support” has been universally recognized

and comprises all the financial contributions that the

decedent would have made to his/her dependents had he/

she lived. Id.; Michigan Central Ry. Co. v. Kelly, 241 U.S.

485, 489 (1916) (“___ compensation for the deprivation of

the reasonable expectation of pecuniary benefits that would

have resulted from the continued life of the deceased.”

[emphasis added]). To assess damages in a wrongful

death case, the jury must assume the decedent continued

to live, not that her deceased children continued to live.

The District Court impermissibly allowed defense coun-

sel to elicit evidence and argue that, had the decedent’s

children and mother continued to live, the decedent's

financial contributions would have been totally allocated

for their support, after taxes and the decedent’s personal

consumption. Indeed, before directing a verdict on the

grounds there was no evidence on which to base a verdict

for lost contributions, the District Court even compelled

the plaintiff’s economist to testify on pecuniary loss cal-

culations by assuming the decedent’s two children and

her mother had survived.

The District Court granted defendant a directed ver-

dict on lost contributions to Mr. Ocampo because it found

there was no evidence with respect to any contributions

made to Mr. Ocampo during his wife’s lifetime; that Mr.

Ocampo didn’t testify with respect to what it took to run

the house including mortgage payments, for insurance, or

even if they had a car. That ruling, affirmed by the D.C.

Circuit, is contrary to 150 years of wrongful death juris-

prudence.

As early as 1866, the Supreme Court said that, in a

wrongful death case, the pecuniary injury resulting from

the death to the next of kin is uncertain and indefinite

10

and the result must be left to turn mainly upon the sound

sense and deliberate judgment of the jury, applied to all

the facts and circumstances. Railroad Company v. Barron, 5

Wall. 90 (1866).

In the oft-cited case of Michigan Central Railroad v.

Vreeland, 227 U.S. 59 (1913), the Court said the measure of

damages is for the loss of prospective benefit. Id. at 71

[emphasis added]. See also, Gonzalez v. N.Y.C. Housing

Authority, 77 N.Y. 2d 663, 572 N.E. 2d 598 (1991); (dam-

ages are “plaintiff’s reasonable expectancy of future assis-

tance or support by decedent.”)

Whether Mr. Ocampo would have benefited from any

of Mrs. Ocampo’s income in continued life is a jury

question. The question that should be posed to a jury is

not what happened before the decedent’s death but what

the prospective contributions would have been had she

continued to live which Mr. Ocampo could reasonably

have expected to receive. The trial court erred by requir-

ing the plaintiff to prove exactly how much be received

before his wife’s death rather than permit the jury to

consider what support he reasonably could have

expected to receive in the future. Moreover, the directed

verdict did not take into account that, at majority, the

children would have been on their own financially and

that Mrs. Ocampo’s earnings were the majority (60%) of

the family income.

“Insistence on mathematical precision would be illu-

sory and the judge or juror must be allowed a fair lati-

tude to make a reasonable approximation guided by

judgment and practical experience” in a DOHSA case.

Whitaker v. Blidberg Rothchild Company, 296 F.2d 545, 555

11

(4th Cir. 1961), Petition of Risdale & Anderson, Inc., 591 F.

Supp. 353, 357 (D. Mass. 1968). The basic question to be

considered in each case is how much money would the

decedent have had available for contributions to “the

persons for whose benefit the suit is brought.” This

means the surviving beneficiaries not the deceased ones.

Petition of Risdale, supra. Of primary importance is the

decedent’s earning capacity which may be estimated

from such factors as decedent’s actual earnings during

the period before death, her health, diligence in work

habits in general, prospects for advancement and the

economic conditions of the industry in which she was

employed. Petition of Mariana Mercante Nicaraguenesa, 248

F. Supp. 15, 26-27 (SDNY, 1965), aff’d 364 F.2d 118 (1966).

In this case, the District Court held the decedent’s

earning capacity irrelevant, finding Mr. Ocampo was not

dependent on his wife because he was earning 40% of the

family’s income. The Court reasoned that because there

was no evidence as to how much Mrs. Ocampo contrib-

uted directly to plaintiff during their lifei: »e, defendant

was entitled to a directed verdict. While plaintiff con-

cedes evidence of prior contributions tu the household

members may be useful information if such records were

kept, it is unrealistic to require exact proof of each indi-

vidual’s share of house expenses. Moreover, any tangen-

tial relevance to past allocation of income would be

applicable only if the children or mother-in-law had sur-

vived; it was of no relevance in this case in view of the

fact that Mr. Ocampo was the lone survivor.

The test to determine loss of financial contributions is

not one that measures how much money the decedent

gave directly to the surviving beneficiary or indirectly

12

through a bank account. The test is a “reasonable expecta-

tion that such benefits would have accrued to the com-

plainant from the continued life of the decedent”, S.S.

Black Gull, 90 F.2d 619, 620 (2d Cir. 1937) cert. denied, Faye

v. American Diamond Lines, 302 U.S. 728 (1937). Otherwise,

by way of example, where the wrongful death is of an

infant, the Court of Appeals’ decision would always com-

pel a dismissal of all claims for loss of future support

because there would never be proof that the child ever

gave any support in his lifetime to his parents. Yet, pre-

vailing law in the United States, in infant death cases,

permits damages to be awarded for the loss of contribu-

tions which a parent might reasonably expect to receive

from the child during his lifetime. See Michigan Central

Railroad Company v. Vreeland, supra}.

By way of yet another example, suppose one of Mr.

Ocampo’s children was not on the airplane and survived

with him. In such case, the Court of Appeals’ ruling

would require judgment for defendant because the sur-

viving beneficiaries could not allocate what percentage of

the mortgage was paid on behalf of the child and what

percentage on behalf of Mr. Ocampo? Courts have uni-

formly listed which elements are to be considered in

awarding wrongful death damages. In addition to possi-

ble lifetime contributions, these include the deceased’s

' Michigan Central Railroad Company v. Vreeland was based

on FELA rather than DOHSA, however, the measure of recovery

under either is same. See, First National Bank in Greenwich v.

National Airlines, 288 F.2d 621, 624 (2d., 1960) cert. denied, sub

nom. Kessler v. National, 368 U.S. 859 (1961).

13

age, health and earning capacity, the surviving benefici-

aries, their ages, health and financial condition and rela-

tionship with them. See, Wade v. Rogla, 270 F. 2d 280 (3rd

Cir. 1959), Dugas v. National Aircraft Corp., 438 F. 2d 1386,

1392-93 (3rd Cir. 1971). All of this was in evidence and

the jury should have been permitted to assess what sup-

port Mr. Ocampo could reasonably have expected in the

future.

Wrongful death damages should be equivalent to

compensation for the deprivation of the reasonable

expectation of pecuniary benefits that would have

resulted from the continued life of the decedent. Chesa-

peake & Ohio Railway Company v. Kelly, 241 U.S. 485 (1916),

citing Michigan v. Vreeland, supra. No reported case ever

found that damages should be based on the continued life

of a deceased’s beneficiaries who also died.

The Death on the High Seas Act does not even

require that the surviving spouse be dependent on the

decedent. 46 U.S.C. 761 (authorizing awards for the bene-

fit of “the decedent’s wife, husband, parent, child or

dependent relative”, the disjunction “or” separating the

need for dependency from recoveries by spouses, par-

ents, or children); Civil v. Waterman SS Corp. 217 F.2d 94

(2d Cir. 1954). Even where a wife had been separated

from her husband for five (5) years with no contributions

preceding his suicide and where she made no attempt to

compel him to support her, she could still recover dam-

ages because of a “reasonable expectation” of support.

Santiago v. Isbrandtson, 204 F. Supp. 777 (SDNY, 1962),

aff'd, 312 F.2d 241 (2d Cir. 1963). Yet, the trial court in the

within case refused to let the jury find any possible lost

future contributions.

14

The trial court found that no rational jury could have

found that Mr. Ocampo would have received any future

contributions because he did not quantify how much he

was getting when Mrs. Ocampo was alive. That has never

been the proof required to make out a prima-facie case

for damages in a wrongful death case.

B. THE COURT’S CHARGE ON LOSS OF SUP-

PORT WAS IRRELEVANT IN VIEW OF THE

FACT IT HAD GRANTED A DIRECTED VER-

DICT ON THAT ISSUE AND NO LINE WAS

PROVIDED TO THE JURY ON THE VERDICT

SHEET.

The Court of Appeals said that the trial court prop-

erly charged the jury for loss of support when it said:

“The loss of anything from which he economi-

cally benefited directly. If (Mrs. Ocampo) made

a contribution toward his ability to maintain

himself, in any form that can be measured eco-

nomically, that was what he lost when she

died.”

First of all, the charge is not correct. The measure of

damages is not how Mr. Ocampo had “benefited” when

his wife was alive, but what he would have received after

his wife’s death. In its charge, approved by this Court,

the trial judge told the jury that if “Mrs. Ocampo made a

contribution toward his ability to maintain himself, that

was what he lost when she died. This is not the measure

of damages in a wrongful death case.

Here the court was telling the jury that the post-

death damages was solely based upon predeath contribu-

tions. Even if the charge were correct, the Court had

15

already granted a directed verdict and did not have a line

on the jury sheet for Mr. Ocampo’s loss of support. There-

fore, even if the Court properly charged about loss of

support, it did not permit the jury to make any award

and did not provide a place on the jury verdict for such

an award. The $63,016 award to the Estate was merely a

finding of lost accumulations, savings by decedent had

she lived that her husband would have inherited (Mr.

Ocampo was younger than his wife.) That award had

nothing to do with lost contributions.

The D.C. Circuit also found that the trial court was

correct in telling the jury “it would be necessary to take

into account Mrs. Ocampo’s expenditures for the benefit

of her children and mother as well as family expenses

with the payments due on their mortgage.” This is an

incorrect statement of the law. Why would it be necessary

to take those amounts into account if, in fact, those bene-

ficiaries were dead? The trial court, as well as the Court

of Appeals, was mistaken to take into account what the

decedent would have given to the children and the

mother-in-law had they survived. Prospective damages in

a DOHSA case is for the benefit of the surviving benefici-

aries and those three people did not survive.

The District Court should have permitted the jury to

consider such damages based on the uncontroverted evi-

dence of Mrs. Ocampo’s earnings less taxes and her per-

sonal consumption. The Court refused to permit the jury

to consider Mr. Ocampo’s loss of contributions based on

evidence of his wife’s earnings because it found that “Mr.

Ocampo failed to present any evidence that would dem-

onstrate the extent to which he personally benefited from

the decedent’s earnings”.

16

The plaintiff “did not testify to having received any

other money from either the account or his wife, and he

presented no evidence concerning the breakdown of

household expenses”. This compelled the Court to grant a

directed verdict on the issue prospective benefits or pro-

spective pecuniary losses.

C. THE RECOVERY IN THIS SUIT WAS NOT

“FAIR OR JUST COMPENSATION FOR THE

PECUNIARY LOSS SUSTAINED.”

46 U.S.C. 762 requires that DOHSA damages be “fair

and just compensation”. In this case, the verdict was a

mere $124,016.

In view of the uncontroverted evidence that Mrs.

Ocampo’s net earnings over her work-life (after deduc-

tion of taxes and personal consumption) would have been

$418,452 to date of trial and $1,314,331 to her retirement,

a $124,000 verdict was not fair and just compensation for

such a loss.

17

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted in all respects.

Dated: January 13, 1998

Respectfully submitted,

SPEISER, KRAUSE, MADOLE & Cook

JUANITA M. MaApDo_e

One Park Plaza, Suite 470

Irvine, CA 92614

(714) 553-1421

Attorney for Petitioner

- and -

LAWRENCE GOLDHIRSCH, P.C.

LAWRENCE GOLDHIRSCH

180 Maiden Lane

New York, New York 10038

(212) 558-5500

Of Counsel

App. 1

Notice: This opinion is subject to formal revision

before publication in the Federal Reporter or

U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may

be made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 1997 Decided September 23, 1997

No. 94-5321

Nan M. OLpHaM, INDIVIDUALLY AND AS PERSONAL REPRESENTA-

TIVE OF THE EsTATE OF JOHN R. OLDHAM, DECEASED, APPELLEE/

Cross-APPELLANT

Vv.

Korean Air Lines Co. Ltp.,

APPELLANT/ Cross-APPELLEE

Consolidated with Nos. 94-5323, 94-5324, 94-5371 & 94-5382

Appeals from the United States District Court

for the District of Columbia

(No. 83cv02941)

(No. 83cv03792)

(No. 83cv03889)

Bills of costs must be filed within 14 days after entry of

judgment. The court looks with disfavor upon motions to file

bills of costs out of time.

App. 2

Andrew J. Harakas argued the cause for appellant,

with whom Deborah A. Elsasser was on the briefs. Timothy

J. Lynes entered an appearance.

Juanita M. Madole argued the cause and filed the

briefs for appellees.

Before Watp and Ranpo pn, Circuit Judges, and Buck-

LEY, Senior Circuit Judge.

Opinion for the court filed by Senior Judge Buck.ey

Buck.ey, Senior Judge:

These consolidated cross-appeals concern pecuniary

and nonpecuniary damages awarded in three separate

actions brought against Korean Air Lines Co., Ltd., by the

survivors and estates of four passengers killed on a flight

from New York City to Seoul, Korea in 1983. As explained

more fully below, we affirm in part, reverse in part, and

remand for certain proceedings.

I. BACKGROUND

A. Proceedings in and Disposition by the District

Court

On September 1, 1983, Korean Air Lines (“KAL”)

flight KE007 deviated from its plotted course and strayed

into the airspace of the former Soviet Union. The plane

crashed into the Sea of Japan after being struck by mis-

siles fired from a Soviet military fighter plane. The crash

killed all 269 persons aboard. See generally In re Korean Air

Lines Disaster of September 1, 1983, 932 F.2d 1475, 1477-79

(D.C. Cir. 1991). Multi-district litigation proceedings

App. 3

established KAL’s liability for this disaster. The individ-

ual cases were then separately tried for damages. In this

appeal, KAL challenges damage awards in three of those

trials.

In 1993, KAL filed a number of motions in the cases

then awaiting trial in the United States District Court for

the District of Columbia, two of which now come before

us on appeal. The first motion sought to limit recoverable

damages to those authorized by the Death on the High

Seas Act (“DOHSA”), 46 U.S.C.App. §§ 761-768, which

prohibits recovery of nonpecuniary damages. In the sec-

ond, KAL opposed the plaintiffs’ requests for the award

of prejudgment interest and argued that in the event the

court made such an award, interest should be based on

the rates paid on 52-week Treasury Bills.

On April 8, 1993, the district court denied the

motions. It held that DOHSA did not preclude the recov-

ery of damages for non-pecuniary injuries because, in the

court’s view, damages for loss of society, survivor’s grief,

and pre-death pain and suffering were recoverable under

Article 17 of the Warsaw Convention governing interna-

tional air transportation. See Convention fer the Unifica-

tion of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, art. XVII, 49 Stat.

3000 (1934) (reprinted in note following 49 U.S.C. § 40105

(1994)) (“Warsaw Convention”). The court also ruled that

prejudgment interest is recoverable at a rate to be deter-

mined after trial.

The cases were then tried in order to determine

KAL’s liability for the four deaths. The juries made the

following awards:

App. 4

Oldham v. KAL:

Death of John Oldham:

a. to Nan M. Oldham (mother):

(1) loss of support: $ 26,000 |

(2) loss of society: $100,000

GByHerief: $225,000 |

b. to Charlotte Oldham-Moore (sister):

(1) loss of financial support: $ 8,000

(2) loss of guidance, training, and advice: $ 25,000

(3) loss of society: $ 20,000

(4}-gritef: $65,006 *

c. to Nancy Oldham Raab (sister):

(1) loss of society: $ 15,000

d. to William D. Oldham III (brother):

(1) loss of society: $ 20,000

(2}-grtef: $66,060 *

e. Pre-death pain and suffering: $100,000

Maikovich v. KAL:

1. Death of Allen Kohn:

a. to Robert Kohn (son):

(1) loss of support, gifts, and contributions: $120,000

(2) loss of inheritance: $434,000

(3) loss of guidance, training, and advice: $ 50,000 |

(4) loss of society: $150,000 |

(5}-grief: $186,008 * |

b. to Joseph Kohn (son):

(1) loss of gifts and contributions: $ 60,000

(2) loss of inheritance: $433,000

(3) loss of guidance, training, and advice: $ 30,000

(4) loss of society: $ 80,000

(5)-grief: $-86,006 *

d.

d.

e.

App. 5

. to Marsha Maikovich (daughter):

(1) loss of gifts and contributions:

(2) loss of inheritance:

(3) loss of guidance, training, and advice:

(4) loss of society:

{5} grief:

Pre-death pain and suffering:

Death of Lillian Kohn:

. to Robert Kohn (son):

(1) loss of gifts and contributions:

(2) loss of guidance, training, and advice:

(3) loss of society:

(4}-grief:

. to Joseph Kohn (son):

(1) loss of gifts and contributions:

(2) loss of guidance, training, and advice:

(3) loss of society:

(4}-grief:

. to Marsha Maikovich (daughter):

(1) loss of gifts and contributions:

(2) loss of guidance, training, and advice:

(3) loss of society:

{4)-grief:

to Lillian Percy Beale (mother):

(1) loss of society:

(2}-grief:

Pre-death pain and suffering:

Ocampo v. KAL:

Death of Suellen Ocampo:

to Edward Ocampo (husband):

(1) loss of services:

(2) loss of society:

(3) grief:

a.

$ 70,000

$433,000

$ 30,000

$100,000

$406,008 *

$100,000

$ 70,000

$ 50,000

$150,000

$-86,000 *

$ 60,000

$ 30,000

$ 80,000

$-86,006 *

$ 70,000

$ 30,000

$100,000

$100,008 *

$ 50,000

$50,006 *

$100,000

$ 26,000

$ 35,000

$-75,060 *

App. 6

b. to the Estate of Suellen Ocampo:

(1) loss of net accumulated assets: $ 63,016

(2) pre-death pain and suffering: $ 0

* All jury awards for grief were later stricken by

the district court.

Following entry of final judgment in each case, KAL

timely moved for judgment as a matter of law or, in the

alternative, for a new trial or remittitur of damages. The

district court granted KAL’s motions to set aside all dam-

age awards for survivors’ grief but denied the motions in

all other respects.

B. Statement of Relevant Facts in the Individual

Cases

1. Oldham v. KAL

This action was brought by Nan Oldham, the mother

of decedent John R. Oldham, on her own behalf and as

personal representative of his estate. She seeks pecuniary

and nonpecuniary damages for herself, the estate and the

decedent’s three surviving siblings, Charlotte Oldham-

Moore, Nancy Oldham Raab, and William D. Oldham III.

Mr. Oldham’s parents, Dr. William Oldham and Nan

Oldham, became separated in 1970 when she and her

children returned to the United States from Taipei, Tai-

wan, where the family had lived since 1966. They were

divorced in the following year. Since that time, Dr. Old-

ham has continued to live overseas and has had virtually

no contact with his children. In fact, at the time of Mr.

Oldham’s death, his younger sister Charlotte, who was

App. 7

then 18, had not seen her father since she was one-and-

one-half years old.

Mr. Oldham received his undergraduate degree from

Princeton University. During his years there, he returned

home during holidays and in the summers to be with his

mother and siblings. In 1980, after a year abroad as a

Fulbright scholar during his senior year of college, Mr.

Oldham began a three-year program at Columbia Univer-

sity’s law school, returning home to be with his family

during vacations, in the summer, and about twice a

month on weekends during the school year. There is

ample testimony that during all these years, he took a

special interest in the upbringing and education of his

sister Charlotte and that she came to regard him as a

surrogate father.

Following his graduation from law school in 1983,

the law firm of Surrey & Morse offered him a job as an

associate. Because he had an opportunity to teach the

American legal system in China as a Ford Foundation

Fellow, the firm rescheduled his starting date for June

1984 at the same salary. Mr. Oldham told a professor at

the law school and a lawyer at Surrey & Morse about his

family’s background and about his belief that he bore the

financial responsibility for supporting his mother and his

sister Charlotte. (His sister Nancy had married in 1982.)

Mr. Oldham also mentioned to family members that

he intended to provide financial assistance to his mother

and Charlotte once he was earning a salary. Charlotte

admitted that she had never received financial assistance

from her brother. Although she expected that he would

App. 8

have helped finance her education, she did not know how

much he would have contributed.

2. Maikovich v. KAL

Marsha J.K. Maikovich, daughter of decedents Allen

and Lillian Kohn, sued for pecuniary and non-pecuniary

damages on her own behalf and on behalf of her parents’

estates. The Kohns were survived by three children,

Marsha Maikovich, Joseph Kohn, and Robert Kohn, and

Lillian Kohn’s mother, Lillian Percy Beale. At the time of

the crash, Allen Kohn was a 64-year-old stockbroker with

Drexel Burnham Lambert (“Drexel Burnham”). He had

spent his entire career at Drexel Burnham, having started

to work for the firm in the mid-1950’s. His compensation

during the years from 1978 through 1982 ranged between

$58,425 and $78,355. In 1983, his earnings up to Septem-

‘ber 1, the day he died, totaled $106,365. In the approxi-

mately 30 years that he had worked, he had accumulated

an estate of $1,500,000, all of which was distributed to his

children after his death.

Decedent Lillian Kohn was 55 years old when she

died. She was a homemaker who worked on occasion as a

freelance writer. The only evidence of her earnings pre-

sented at the trial showed that she had been paid $11,654

in 1979.

The Kohns’ two oldest children, Marsha Maikovich

(age 29) and Joseph Kohn (age 26), were college educated,

financially independent adults at the time of the crash.

Both testified at the trial that, at the time of the crash,

they were not receiving any money from the decedents

App. 9

for necessities and did not expect to need or receive

financial support from them in the future. Nevertheless,

the Kohns’ children remained extremely close to their

parents and telephoned them one or more times a week

to share experiences and to discuss their problems. The

evidence also indicated that the Kohns made frequent

financial contributions to or on behalf of the adult chil-

dren.

Their third child, Robert Kohn, was 17 years old and

preparing to attend college at the time of the crash. When

he turned 18, Robert assumed control of a custodial

account containing $102,449 that had been established by

Allen Kohn for Robert's education. Although the Kohns

had established similar accounts for their other two chil-

dren, their father paid for their college and post-graduate

expenses out of other funds and gave these children the

money in the custodial accounts. Robert ultimately

received undergraduate and graduate degrees and, at the

time of the trial, was working for a consulting firm out-

side of Pittsburgh.

3. Ocampo v. KAL

Decedent Suellen Ocampo, who was 39 years old at

the time of her death, lived with her husband Edward

Ocampo (the plaintiff in this case), their two minor chil-

dren (ages 3 and 4), and her mother. Although Mrs.

Ocampo’s mother and two children were also killed in

the KE007 crash, their claims were settled prior to trial.

The trial therefore concerned only KAL’s liability to Mr.

Ocampo and to his wife’s estate.

App. 10

The decedent was a licensed pharmacist who earned

approximately $32,000 a year. At the time of the crash,

Mr. Ocampo was employed at a brokerage firm. He had

previously worked as a housekeeper and as a restaurant

manager. His mother-in-law looked after the two children

and was fully dependent on the Ocampos for her finan-

cial support.

At the trial, Mr. Ocampo testified that he had contrib-

uted about 40 percent of the family’s total support and

that he and his wife had placed all of their money in a

joint account from which he received $20 a week. He also

testified that his wife paid the household bills from the

account. The Ocampos owned a home in Staten Island,

New York, for which they had made a $20,000 down

payment that virtually exhausted their savings. Mr.

Ocampo failed to present any evidence that would indi-

cate either the size of their family expenses or the extent

to which the expenses had been paid by the decedent.

II. ANALYsIs

We will address the issues common to all three cases

and then discuss the issues particular to Oldham, Maik-

ovich, and Ocampo in that order.

A. Claims Common to the Three Cases

1. This Court's July 26, 1996 Order

Following the parties’ submissions of briefs in these

appeals, we ordered that the cases be held in abeyance

pending the decision of the Supreme Court in Zicherman

v. Korean Air Lines Co., Ltd., 116 S. Ct. 629 (1996). Order

App. 11

dated September 20, 1995. The Supreme Court issued its

decision on January 16, 1996, which held, inter alia, that

Articles 17 and 24(2) of the Warsaw Convention

permit compensation only for legally cognizable

harm, but leave the specification of what harm

is legally cognizable to the domestic law appli-

cable under the forum’s choice-of-law rules.

Where, as [in the case of Flight KE007], an air-

plane crash occurs on the high seas, DOHSA

supplies the substantive United States law... .

DOHSA permits only pecuniary damages. .. .

Id. at 637. The Court, however, explicitly declined to

consider whether DOHSA permits the recovery of dam-

ages for a decedent’s pain and suffering. Id. at 636 n.4.

KAL moved for permission to submit a supplemental

brief to address the recoverability of such damages under

DOHSA. We directed the parties to file replacement briefs

“limited in scope to those issues which were raised in the

parties’ first [submissions]” and dismissed as moot KAL’s

motion for leave to file supplemental papers. Order dated

July 26, 1996.

In its replacement briefs, KAL challenged the avail-

ability of damages for pre-death pain and suffering under

DOHSA even though it had failed to raise that issue in its

earlier submission. KAL claims that our July 26 Order

implicitly permitted it to argue the question because, it

asserts, we would not have dismissed its request as moot

unless we intended to allow it to discuss the matter. KAL

is mistaken. Our July 26 Order clearly stated that the

parties’ replacement briefs would be “limited in scope to

those issues” raised in the first submissions. We dis-

missed KAL’s motion as moot because our instructions

App. 12

indicated that KAL could not address the availability of

pre-death pain and suffering damages if the question had

not previously been raised.

KAL offers no reason why it could not have raised

the issue in its initial briefs. This is hardly surprising

because it was well aware of its existence long before the

Supreme Court’s decision in Zicherman. In fact, KAL’s

counsel had argued the unavailability of damages for pre-

death pain and suffering before the district court and in

several related cases elsewhere in the country. Accord-

ingly, we will not consider KAL’s claim that such dam-

ages are unavailable as a matter of law. See Bickel v.

Korean Air Lines Co., Ltd., 96 F.3d 151, 153-54 (6th Cir.

1996) (declining, in a related case, to address pre-death

pain and suffering claims because issue was not raised in

initial briefs), cert. denied, 117 S. Ct. 770 (1997).

2. Loss of Society

KAL contends that the district court erred in holding

that damages for loss of society were available under

Article 17 of the Warsaw Convention. Although such

damages are recoverable under general maritime law, see

Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 585 (1974), the

Supreme Court ruled, in Zicherman, that “where DOHSA

applies, neither state law . . . nor general maritime law-

. can provide a basis for recovery of loss-of-society

damages,” 116 S. Ct. at 632 (citations omitted), and that

“[b]ecause DOHSA permits only pecuniary damages,

petitioners are not entitled to recover for loss of society.”

Id. at 637. Accordingly, the awards for loss of society are

disallowed.

App. 13

B. Oldham v. KAL

The jury awarded decedent John Oldham’s younger

sister, Charlotte Oldham-Moore, $8,000 for loss of sup-

port and $25,000 for loss of guidance, training, and

advice. KAL argues that because Charlotte was not

dependent on her brother prior to or at the time of his

death, she canndt recover these damages under DOHSA.

The district court rejected this argument, reasoning

that

[aJlthough KAL is correct that recovery for loss

of guidance, training, and advice under-

. . . DOHSA[] has generally been limited to a

decedent's children, in light of the Warsaw Con-

vention’s intent to compensate claimants for

“damage sustained,” this Court finds that

whether recovery for loss of guidance, training,

and advice is permissible depends upon the fac-

tual circumstances giving rise to such a claim.

Oldham v. Korean Air Lines Co., Ltd., C.A. No. 83-3889,

mem. op. at 16 (D.D.C. Oct. 11, 1994). The court noted

that it had instructed the jury that “in order for Charlotte

to recover, you must find from the evidence that John

Oldham acted in place of a parent or a father for her.” Id.

With respect to loss of support, the court found that,

because the mother and sister had testified to conversa-

tions in which Mr. Oldham had pledged to provide them

with financial assistance in the future, there was suffi-

cient evidence in the record to sustain the jury award.

As we have explained, the district court erred in

relying on the Warsaw Convention. See Zicherman, 116

S. Ct. at 634-36. Moreover, under DOHSA, a suit for

App. 14

damages may be brought only “for the exclusive benefit

of the decedent’s wife, husband, parent, child or depen-

dent relative.” 46 U.S.C. app. § 761; see Evich v. Connelly,

759 F.2d 1432, 1433 (9th Cir. 1985) (“Siblings must prove

their dependency in order to bring a DOHSA action.”).

For dependency to exist, “there must be a legal or volun-

tarily created status where the contributions are made for

the purpose and have the result of maintaining or helping

to maintain the dependent in his customary standard of

living.” Petition of United States, 418 F.2d 264, 272 (1st Cir.

1969) (quoting United States Fidelity & Casualty Co. v.

Britton, 188 F.2d 674, 675 (D.C. Cir. 1951)).

We agree with KAL that there is no evidence that

Charlotte was financially dependent upon her brother. To

the contrary, the record shows that she was supported by

her mother and that Mr. Oldham had never provided her

with any financial support prior to his death. Although

there was evidence that Mr. Oldham had promised his

mother and sister that he would support them in the

future, a pledge of future performance is insufficient to

establish a present state of dependency. Accordingly, we

reverse the awards.

C. Maikovich v. KAL

KAL argues that, in Maikovich, the district court erred

in allowing damage awards for the following: (1) the

Kohn children’s loss of inheritance; (2) their loss of gifts

and contributions and of support; (3) their loss of guid-

ance, training, and advice; and (4) the decedent’s pain

and suffering.

App. 15

1. Loss of Inheritance

The jury awarded the Kohn children $1.3 million for

loss of inheritance. The district court then employed the

“Ibbotson Index” (a stock market index that tracks the

rate of return on investments in traded securities) in

calculating the prejudgment interest, which increased the

total to approximately $5 million. KAL challenges this

award on four grounds. KAL claims, first, that the court

abused its discretion when it admitted testimony by the

plaintiff’s expert witness, Dr. Thomas C. Borzilleri. KAL

relies on Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549,

568 (D.C. Cir. 1993) (holding that admission of expert

testimony was abuse of discretion when testimony was

pure conjecture unsupported by the record), to argue that

Dr. Borzilleri’s testimony should have been excluded

because his calculations and method of projecting the loss

of inheritance were “rampant speculation.” Second, it

argues that the award is not supported by sufficient

evidence in the record. Third, KAL contends that the

amounts awarded for the losses of gifts and contributions

should have been deducted from the awards for losses of

inheritance. Fourth, it argues that the court erred in its

calculation of prejudgment interest.

Each side presented expert testimony on the value of

the Kohn children’s lost inheritance. The testimony

focused on two related questions: (1) How much would

have been added to the children’s inheritance out of Mr.

Kohn’s future earnings if he had not died prematurely;

and (2) how much larger, if at all, would the inheritance

have been if Mr. Kohn had been able to continue to

manage the $1.5 million securities portfolio beyond 1983.

App. 16

With respect to the first question, the parties’ experts

projected Mr. Kohn’s future earnings over their respective

estimates of his future work life, added a percentage for

fringe benefits that Mr. Kohn would have received from

his employer, and deducted taxes and personal/family

expenses in order to arrive at annual savings that his

children would have ultimately inherited. In his initial

presentation, Dr. Borzilleri estimated the value of the

accrued savings to be $1.6 million in 1993 dollars (1993

being the year the trial took place), while KAL’s expert,

Dr. John Glennie, valued the savings at $256,000 in 1983

dollars (the year of the crash).

The disparity between Dr. Borzilleri’s and Dr. Glen-

nie’s initial estimates results largely from three critical

differences in their assumptions and methodologies.

First, the experts used different “base” incomes for their

projections. While they both attributed to Mr. Kohn an

annualized 1983 income of approximately $162,000 based

on his earnings prior to his death on September 1, 1983,

Dr. Borzilleri used that figure as his base in computing

what Mr. Kohn would have earned in succeeding years.

But because Dr. Glennie considered those earnings aber-

rational (they were more than twice as large as those of

any previous year), he used Mr. Kohn’s 1982 earnings of

$76,118 as the basis for his projections.

Second, because a stockbroker’s compensation usu-

ally consists of commissions, both experts agreed that Mr.

Kohn’s income would reflect changes in the volume or

value of the trading on the New York Stock Exchange

(“Exchange”), but they arrived at different correlations

between his earnings and those changes. Dr. Borzilleri

assumed that Mr. Kohn’s income would have gone up or

App. 17

down in direct proportion to any increase or decrease in

the prices of stocks traded on the Exchange (e.g., if the

value of the market increased by 10 percent, so would Mr.

Kohn’s commissions). Dr. Glennie, however, examined

Mr. Kohn’s brokerage income for the years 1972 through

1982 (once again rejecting the 1983 earnings as unrepre-

sentative) and determined that, on average, Mr. Kohn’s

earnings rose or fell at about half the rate of change in the

trading volume on the Exchange (e.g., if the trading vol-

ume increased by 10 percent, his earnings would increase

by five percent). While Dr. Borzilleri based his projections

on changes in prices on the Exchange and Dr. Glennie

based his on changes in trading volume, they both agreed

that whether one looks at price or volume makes little

difference in the final outcome.

Third, the experts disagreed on the age at which Mr.

Kohn would have retired. Dr. Borzilleri testified that,

although the children had never heard their father speak

of retiring and believed that he would have died on the

job, he adopted the more conservative assumption that

Mr. Kohn would have worked until he reached the age of

74. In contrast, Dr. Glennie relied solely on work life

expectancy charts published by the Bureau of Labor Sta-

tistics of the U.S. Department of Labor to conclude that

Mr. Kohn would have retired four-and-a-half years ear-

lier, at age 69. He claimed that these charts were more

objective than the children’s testimony. On cross-exam-

ination, Dr. Borzilleri stated that he had done his doctoral

thesis on the subject of retirement and emphasized that

the Department of Labor chart reflected the average

retirement age of all persons. He noted that while

laborers tended to retire before they reached the average

App. 18

age, high income professionals tended to fall into two

groups: those who retire very early and “fish the rest of

their lives” and the rest, who continue working past the

average retirement age. He also indicated that the charts

yield strange results for certain groups of people. For

example, an 18-year-old is estimated to retire at age 55

even though, in reality, most people are not financially

able to do so.

There were other differences in the two experts’

assumptions. Dr. Borzilleri, for example, estimated that

Mr. Kohn would have received fringe benefits amounting

to 10 percent of his annual compensation whereas Dr.

Glennie assumed a rate of 23 percent; and although Dr.

Borzilleri’s calculations of accrued savings ended with

Mr. Kohn’s actuarial death in 1998, Dr. Glennie’s projec-

tions extended to the year 2008, when his widow would

have reached the end of her life expectancy, on the

assumption that there would have been no distribution to

the children until that time.

We need not analyze these differences because, on

rebuttal, Dr. Borzilleri adopted Dr. Glennie’s methodol-

ogy and assumptions in all but two respects. First, he

rejected the assumption that Mr. Kohn’s 1983 earnings

were aberrational. He therefore used them both as his

base for projecting Mr. Kohn’s subsequent earnings and

in determining the correlation of those earnings with

fluctuations of the market. Thus, employing Dr. Glennie’s

methodology but including the 1983 earnings in his calcu-

lations, he concluded that, on average, Mr. Kohn’s earn-

ings changed at about 87 percent of the rate of change in

trading volume on the Exchange. Second, Dr. Borzilleri

App. 19

continued to assume that Mr. Kohn would have worked

until he reached the age of 74.

Having adopted Dr. Glennie’s assumptions and

methodology in every respect but these, Dr. Borzilleri

calculated the children’s loss, in 1983 dollars, to be $1.3

million. Dr. Borzilleri noted that this result was virtually

the same as the one he had reached in his initial presenta-

tion because the net lost earnings of $1.6 million to which

he had earlier testified was stated in 1993 dollars, which

is equivalent to $1.2 million in 1983 dollars.

Because, in awarding damages for the loss of inheri-

tance, the jury used the exact figure Dr. Borzilleri had

arrived at in his rebuttal testimony, we conclude that the

award was based on that testimony. See Sandberg v. Vir-

ginia Bankshares, Inc., 891 F.2d 1112, 1123 (4th Cir. 1989)

(“The verdict that Sandberg’s stock was worth $60 at the

time of the merger clearly evinces acceptance by the jury

of the testimony of her expert witness.”); Cities Service

Gas Co. v. FPC, 535 F.2d 1278, 1287 & n.46 (D.C. Cir. 1976)

(finding that where jury award differed from expert’s

multimillion dollar evaluation by only 67 cents, the jury

“must have accepted” that expert’s assumptions). The

question before us, then, is whether there was sufficient

evidence to support the two key changes that Dr. Bor-

zilleri made in his opposing expert’s assumptions. We

believe there was.

In his cross-examination, KAL’s counsel sought to

discredit Dr. Borzilleri’s use of Mr. Kohn’s 1983 compen-

sation in his projections of Mr. Kohn’s post-1983 income.

He specifically challenged their inclusion in the calcula-

tion of “average earnings” that Dr. Borzilleri used to

—_—

App. 20

correlate his earnings with the volume of trading on the

New York Stock Exchange. In answering counsel’s ques-

tions, Dr. Borzilleri acknowledged that economists and

statisticians typically used the median sum, i.e., the mid-

dle of a set of numbers, rather than the average because

averages are influenced by extreme values whereas

medians are not. He nevertheless defended his reliance

on the 1983 earnings, stating that he knew of no basis for

ignoring a number merely because it was too big and that

anomalies must be scrutinized, not discarded out of

hand.

Dr. Borzilleri agreed that the 1983 earnings were

large when compared with those of previous years. But

given the dramatic developments that had taken place in

the securities markets in late 1982 and 1983, he thought

they provided an appropriate basis for projecting future

income. As he had earlier testified while presenting an

Ibbotson Associates chart illustrating the returns on var-

ious kinds of investments, August 1982 marked the

beginning of one of the three strongest bull markets in

our nation’s history. Between then and the end of the bull

market in August 1987, the value of investments in stocks

with dividends reinvested nearly quadrupled, which rep-

resented a compound rate of return of 30.1 percent. Dr.

Borzilleri maintained, therefore, that the likely explana-

tion for the size of Mr. Kohn’s 1983 earnings was that the

stock market had “taken off.” We believe that this evi-

dence, combined with the correlation that both experts

agreed existed between the market and a stockbroker’s

earnings, was sufficient to enable a reasonable jury to

conclude that Dr. Borzilleri’s use of the 1983 earnings was

appropriate.

App. 21

There was also ample support in the record for his

assumption that Mr. Kohn would have continued to work

until he was 74. As we noted earlier, his children testified

that their father had stated that he would never retire.

The record also indicates that there was no retirement age

at Drexel Burnham, that a former colleague at that firm

was 73 years old and still working, and that Mr. Kohn

had been a healthy, vigorous man. Accordingly, it would

not have been irrational for the jury to accept this key

assumption.

Because the award for the loss of inheritance was

based on Dr. Borzilleri’s computation, in rebuttal, of the

savings Mr. Kohn would have accumulated but for his

premature death, we do not reach the second question the

experts were asked to address, namely, whether the heirs

had suffered a loss resulting from the distribution to

them of $1.5 million in securities that would otherwise

have remained under their father’s management.

Although we reject KAL’s challenges to the jury’s

loss of inheritance award, we are persuaded by its con-

tention that the Kohn children may well have received a

double recovery in this case resulting from the awards to

them of a total of $450,000 for the loss of gifts and

contributions from their parents. Because the computa-

tion on which the $1.3 million loss of inheritance award

was predicated did not include deductions for such gifts,

these losses should have been deducted from the

amounts awarded for loss of inheritance unless there was

evidence that the parents would have used funds other

than those earned and saved by Mr. Kohn in making the

gifts. Accordingly, we vacate the district court’s decision

not to deduct the awards for gifts and contributions from

App. 22

—

those for the loss of inheritance and remand for further

proceedings to determine whether the awards resulted in

double recoveries, and if so, to what degree.

Lastly, KAL objects both to the district court’s award

of prejudgment interest on the loss of inheritance awards

and to the means by which the interest rate was calcu-

lated. “[W]hether pre-judgment interest is to be awarded

is subject to the discretion of the court and equitable

considerations.” Motion Picture Ass’n of Amer., Inc. v.

Oman, 969 F.2d 1154, 1157 (D.C. Cir. 1992). The purpose of

such awards is to compensate the plaintiff for any delay

in payment resulting from the litigation. See id. (“interest

compensates for the time value of money, and thus is

often necessary for full compensation”). KAL argues that

because Dr. Borzilleri stated his loss of inheritance calcu-

lations in 1993 dollars, there was no need to add prejudg-

ment interest. Although that was true of his initial

presentation, we have concluded that the jury’s $1.3 mil-

lion award was based on Dr. Borzilleri’s rebuttal testi-

mony, which was stated in 1983 dollars. Accordingly, the

court did not abuse its discretion in awarding prejudg-

ment interest.

The question that remains is whether the court

abused its discretion when it directed that the Ibbotson

Index be used to determine how much interest was pay-

able. We observed in a recent case that the prime rate, i.e.,

the rate that banks charge for short-term unsecured loans

to credit-worthy customers, is an appropriate measure of

prejudgment interest. Forman v. Korean Air Lines Co., Ltd.,

84 F.3d 446, 450 (D.C. Cir.), cert. denied, 117 S. Ct. 582

(1996). Although the court used the prime rate for all the

other damage awards in these cases, it employed the

App. 23

Ibbotson Index in the case of the loss of inheritance

award. The court reasoned that because that loss reflected

what Mr. Kohn would have made as a stock-

broker and what he had saved through stock

market transactions, . . . the Ibbotson Index is

the best tool for determining what interest the

children could have made on the money if they

had received it in 1983 - when the accident

occurred.

Maikovich v. Korean Air Lines Co., Ltd., C.A. No. 83-3792,

mem. op. at 3 (D.D.C. July 16, 1993). We are not per-

suaded by this reasoning. What Mr. Kohn would have

made and saved is irrelevant to the question of what

constitutes appropriate compensation for a delay in a

successful party’s receipt of a cash payment. The time

value of the money is the same whether paid in satisfac-

tion of an award for a loss of inheritance or a loss of

society. Accordingly, we strike the award and remand for

recomputation.

2. Loss of Support, Gifts, and Contributions

Under DOHSA, recovery in a wrongful death action

occurring on the high seas “shall be a fair and just com-

pensation for the pecuniary loss” sustained by the dece-

dent’s wife, husband, parent, child, or dependent

relative. 46 U.S.C. app. §§ 761, 762. The district court

determined that the Kohns’ 17-year-old son, Robert, but

not their two adult children, could recover for loss of

support, which “includes all the financial contributions

that the decedent would have made to his dependents

had he lived,” Gaudet, 414 U.S. at 584-85. The court

App. 24

decided, however, that all three could recover for the loss

of gifts and financial contributions that, based on past

experience, they could reasonably have expected to

receive from their parents in the future. The jury awarded

the three children an aggregate of $250,000 to compensate

them for the loss of their father’s support (in the case of

Robert), gifts, and contributions and an aggregate of

$200,000 for the loss of their mother’s gifts and contribu-

tions.

KAL challenges these awards on three grounds. First,

it claims that the loss of support award for Robert should

have been limited to support until he reached the age of

18. Second, it argues that the awards to the adult children

for loss of gifts and of contributions are not permitted

under DOHSA. Third, it contends that the awards for the

losses of gifts from Lillian Kohn should be struck because

she had virtually no income independent of her husband.

a. Loss of Support for Robert Kohn

KAL contends that the award for loss of support of

Robert Kohn should be set aside. Although Robert was a

17-year-old minor at the time of the plane crash, he was

preparing to go away to college. Mr. Kohn had estab-

lished a custodial account containing more than $100,000

for his education, which was distributed to him when he

turned 18. According to KAL, there was no evidence that

Robert would have been financially dependent on his

parents after reaching that age because the money in the

account was sufficient to meet his education and living

expenses.

App. 25

KAL ignores uncontradicted testimony that the

Kohns had provided their older children, Marsha and

Joseph, with complete financial support through college

and graduate school notwithstanding the existence of

similar custodial accounts for their benefit. Under the

circumstances, we are satisfied that the jury was entitled

to conclude that, had they survived, the Kohns would

have continued to support Robert financially until he had

completed his college and graduate school education.

Accordingly, we affirm the award.

b. Loss of Gifts and Contributions to Adult

Children

Contrary to what KAL argues, there is nothing in

DOHSA that prohibits an award for an adult’s loss of

financial gifts and contributions. In fact, the statute does

not limit the kinds of losses for which damages may be

awarded so long as they are pecuniary in nature. There is

no question that the loss of prospective financial contri-

butions is pecuniary in nature. Accordingly, we find no

error.

c. Loss of Gifts and Contributions from Lillian

Kohn

KAL maintains that the district court erred when it

rejected KAL’s motion to set aside the jury awards to the

three children for the loss of gifts and contributions from

their mother. It notes that the record contains no evidence

that Mrs. Kohn received any income other than the

$11,653 she earned in 1979 or that she provided gifts or

contributions out of her own resources. Therefore, KAL

App. 26

argues, these awards represent double recoveries by the

children. We agree with the court, however, that there

was sufficient evidence that Mrs. Kohn had used funds

from the joint checking account she shared with her hus-

band to make gifts and contributions to her children to

support the conclusion that she would have continued to

do so in the future. Accordingly, we affirm the awards.

3. Loss of Guidance, Training, and Advice

DOHSA permits recovery for the monetary value of

services a decedent would have continued to provide but

for his wrongful death. “Such services include . . . the

nurture, training, education, and guidance that a child

would have received had not the parent been wrongfully

killed.” Gaudet, 414 U.S. at 585. The district court recog-

nized that, under DOHSA, recovery for loss of guidance,

training, and advice has generally been limited to that

provided a decedent’s minor children. It nevertheless

concluded that awards to adult children for such losses

were permissible under the Warsaw Convention.

As became clear when the Supreme Court issued its

intervening decision in Zicherman, 116 S. Ct. at 634-36, the

district court erred in relying on the Convention. More-

over, we agree with the Second and Fifth Circuits that,

under DOHSA, damages for loss of parental guidance

and training are available to adult children only if there is

a very specific showing that “their parents’ guidance had

a pecuniary value beyond the irreplaceable values of

companionship and affection.” Solomon v. Warren, 540

F.2d 777, 789 (5th Cir. 1976) (quoting First Nat’l Bank in

Greenwich v. National Airlines, Inc., 288 F.2d 621, 624 (2d

App. 27

Cir. 1961)); see also In re Air Disaster at Lockerbie Scotland

on Dec. 21, 1988, 37 F.3d 804, 830 (2d Cir. 1994).

The evidence at the trial indicated that, after reaching

her majority, Marsha Maikovich lived with her parents

during her first year of law school, sought advice and

guidance from them about career choices after she had

received her law degree, discussed medical options when

she was ill in the hospital, discussed childbearing and

parenting issues with her mother, and sought her father’s

advice on financial matters such as investments and

home ownership. Similarly, Joseph Kohn testified that he

lived with his parents after graduating from college,

worked at Drexel Burnham with his father, and discussed

with him his decision to pursue a master’s degree in

business. After leaving graduate school, he sought advice

from his father about workplace dynamics and invest-

ment matters.

In short, the evidence showed that the Kohns were

interested, loving, and helpful parents. Although we have

no doubt that Marsha and Joseph placed great value on

the counseling that they sought and continued to receive

from their parents, there is nothing in the record to show

that these children suffered a financial loss as a result of

their inability to receive such guidance after 1983.

Accordingly, we reverse the awards to Marsha and Joseph

for loss of guidance, training, and advice and remand the

award to Robert so that the district court may determine

the value of the loss that he suffered between the time of

the crash and his eighteenth birthday.

Because we reverse the jury awards on this issue, we

need not consider KAL’s argument that the claimants are

App. 28

not entitled to prejudgment interest on those awards. We

express no opinion on whether prejudgment interest may

be appropriate on any award that Robert may receive for

the loss of guidance, training, and advice prior to his

eighteenth birthday but leave that determination to the

district court.

4. Pre-Death Pain and Suffering

Although we have declined to consider KAL’s claim

that damages for pre-death pain and suffering are not

available under DOHSA because it was not raised in its

initial briefs, see supra at 10, we will consider its timely

argument that there was insufficient evidence to support

the jury awards of $100,000 for the pre-death pain and

suffering of each of the three decedents in Maikovich and

Oldham.

As we noted in Forman, the “key factual dispute turns

on whether the passengers were immediately rendered

unconscious.” 84 F.3d at 449. Expert witnesses for the

plaintiffs in Maikovich and Oldham addressed this issue. In

Maikovich, one expert testified that although shrapnel

from a Soviet missile had penetrated the rear of the plane,

it had not caused the aircraft to explode or to disinte-

grate. He then stated that because Mr. and Mrs. Kohn

were seated over the wing, they would have been able to

don their oxygen masks after the missile attack and

would have been fully conscious and aware of the events

around them until the plane hit the water. Similarly, an

expert for the plaintiff in Oldham testified that the shrap-

ne] would not have reached the seat assigned to John

Oldham and that the drop in pressure within the plane

App. 29

automatically would have caused the oxygen masks to

drop in front of the passengers.

A second expert in Maikovich testified that a rapid

decrease in air pressure within the cabin could have

resulted in ruptured eardrums, the tearing of sinus tissue

and of the lungs, and a buildup of pressure in the stom-

ach or intestines. He stated that the Kohns would have

experienced physical pain from one or more of these

causes and would have suffered mental pain as well. An

expert in Oldham described the effects of decompression

on the human body and testified that Mr. Oldham would

have experienced physical pain, anxiety, and fear.

Although KAL asks us to dismiss this testimony as

speculative because there was nothing in the record to

confirm that the three decedents had in fact survived the

Soviet strike and had remained conscious and experi-

enced pain, we find that the evidence presented in these

cases was substantially similar to that which we found

su ficient in Forman. See 84 F.3d at 449-50; see also Bickel,

96 F.3d at 155-56 (finding sufficient evidence of pre-death

pain and suffering in same accident); Hollie v. KAL, 60

F.3d 90, 92-93 (2d Cir. 1995) (same), judgment vacated on

other grounds and case remanded, 116 S. Ct. 808 (1996);

Zicherman v. KAL, 43 F.3d 18, 23 (2d Cir. 1994) (same),

rev'd in part on other grounds, 116 S. Ct. 629 (1996). Accord-

ingly, we affirm the awards.

D. Ocampo v. KAL

Plaintiff Edward Ocampo, who brought this action on

his own behalf and as administrator of his wife’s estate,

App. 30

contends that the district court made three trial errors: (1)

it employed an overly narrow definition of loss of sup-

port and, as a result, incorrectly directed a verdict for

KAL; (2) it improperly instructed the jury on his claim of

“loss of the net accumulated assets”; and (3) it improp-

erly admitted evidence of his salary.

1. Loss of Support

Mr. Ocampo argues that the district court misun-

derstood the nature of a loss of support claim by equating

it with the costs associated with the basic necessities of

life. According to him, the trial judge should have permit-

ted damages for “loss of pecuniary benefits” or “loss of

financial contributions” equivalent to his wife’s gross

earnings less taxes and her personal consumption.

We disagree. As an initial matter, the record does not

support Mr. Ocampo’s assertion that the district court

limited his claims to the costs associated with the basic

necessities of life. Rather, it characterized loss of support

as

the loss of anything from which he economically

benefitted directly. If [Mrs. Ocampo] made a

contribution toward his ability to maintain him-

self, in any form that can be measured economi-

cally, that’s what he lost when she died.

Transcript of Trial Proceedings, May 5, 1993, at 135. The

court also noted that in order to determine what that

contribution was, it would be necessary to take into

account Mrs. Ocampo’s expenditures for the benefit of

her children and mother as well as such family expenses

as the payments due on their mortgage.

ee

App. 31

Regardless of how the loss is defined, we find no

error. Mr. Ocampo failed to present any evidence that

would demonstrate the extent to which he personally

benefitted from the decedent's earnings. He testified that

he and his wife both worked full time, that he earned

approximately 40 percent of the family’s income, and that

they deposited their earnings in a joint bank account from

which he received approximately $20 a week. He did not

testify to having received any other money from either

the account or his wife, and he presented no evidence

concerning the breakdown of household expenses.

We find this case distinguishable from Forman

because the evidence there indicated that the “Formans’

was a share-and-share-alike household such that the jury

could reasonably find that whatever portion of Evelyn’s

earnings remained after taxes and after her personal con-

sumption would redound to Eric’s benefit.” 84 F.3d at

450. In this case, Mr. Ocampo failed to provide any evi-

dence that would indicate how much of his wife’s earn-

ings would redound to his benefit as compared to that of

his children and mother-in-law. Thus, the district court

properly directed a verdict for KAL on this issue.

2. Loss of Net Accumulated Assets

The district court instructed the jury that Mr.

Ocampo was entitled to recover damages for the “loss of

the net accumulated assets” suffered by him in his capac-

ity as administrator of his wife’s estate. Mr. Ocampo

argues that because the instruction limited the recovery

to losses suffered by him in his capacity as administrator

and because it equated the loss with a mere loss of

App. 32

inheritance, the court hopelessly confused the jury. As a

consequence, he states, the jury ignored expert testimony

to the effect that had she not died in the crash, his wife

would have accrued more than $1.5 million in net earn-

ings that would have been available to him.

We see no reason to question the district court’s

instruction. The court had already ruled that Mr. Ocampo

had failed to introduce any evidence that would have

enabled a jury to award damages for the loss of financial

contributions. Therefore, it was entirely appropriate for it

to advise the jury that the claim for loss of net accumu-

lated assets was being made on behalf of the estate and

that, in making the award, the jury would have to deter-

mine what property Mrs. Ocampo would probably have

accumulated from her earnings and pension benefits had

she not died. The jury was not confused by this instruc-

tion. Mr. Ocampo’s economist testified that, based on the

decedent’s earnings and after appropriate deductions, his

wife would have been able to save approximately $18,562

between 1983 and the time of trial and an additional

$34,454 thereafter. The jury awarded $18,562 for the past

loss of net accumulated assets and $44,454 for future

losses (i.e., $10,000 more than the expert’s estimate).

3. Evidence of Mr. Ocampo’s Salary

Mr. Ocampo also argues that the district court erred

in admitting the amount of his salary into evidence,

which he claims is inadmissible in a wrongful death

action. He fails to explain how he has been harmed by

this admission. The district court did not rely on this

evidence when it found in favor of KAL on the loss of

App. 33

support claim. Accordingly, if there was any error, it was

harmless. a

III. CONCLUSION

For the reasons set forth above, the district court’s

rulings are affirmed in part, reversed in part, and

remanded for further proceedings consistent with this

opinion.

It is so ordered.

App. 34

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-5321 September Term, 1997

83cv02941

83cv03792

83cv03889

(Filed Nov. 6, 1997)

Nan M. Oldham, Individually and as

Personal Representative of the Estate of

JOHN R. OLDHAM, Deceased,

Appellee

v.

Korean Air Lines Co., Ltd.,

Appellant

Consolidated with 94-5323, 94-5324,

94-5338, 94-5371, 94-5382

BEFORE: Wald and Randolph, Circuit Judges, and

Buckley, Senior Circuit Judge

ORDER

Upon consideration of the petition for rehearing of

appellee/cross-appellant Ocampo, filed October 23, 1997,

it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk