Air Crash Disaster Near New Orleans, La. on July 9, 1982, In re

• Decision Date: 09 July 1982
• Parties: 18 Fed. R. Evid. Serv. 1094 In re AIR CRASH DISASTER NEAR NEW ORLEANS, LOUISIANA ON
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1151

767 F.2d 1151 18 Fed. R. Evid. Serv. 1094 In re AIR CRASH DISASTER NEAR NEW ORLEANS, LOUISIANA ON JULY
9, 1982.
Robert GIANCONTIERI, Plaintiff-Appellee Cross-Appellant,
v.
PAN AMERICAN WORLD AIRWAYS, INC., et al.,
Defendants-Appellants Cross-Appellees. No. 84-3314. United States Court of Appeals,
Fifth Circuit. Aug. 12, 1985.

Page 1152

Francis G. Weller, Robert E. Kerrigan, Jr., Darrell K. Cherry, New Orleans, La., for Pan American World Airways, Inc.

William C. Credo, III, Metairie, La., for Giancontieri.

Appeals from the United States District Court for the Eastern District of Louisiana.

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Before WISDOM, TATE and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This is one of more than three hundred lawsuits stemming from the July 9, 1982 crash of Pan American World Airways flight 759 in Kenner, Louisiana. The plane's fuselage completely destroyed the home of Robert Giancontieri, killing his wife, Sandra, twenty-six, and his three children, Robert, six, Ryan, four, and Christopher, three months. In Mr. Giancontieri's wrongful death action, the jury awarded the following damages:

Although a claim for the conscious pain and suffering prior to death of the three children was made, the jury awarded no damages for this item. After a hearing on Pan Am's request for a new trial, the district court granted the motion unless Giancontieri agreed to remit to $1,000,000 the $1.5 million award for the loss of his wife's love and affection, remit to $15,000 the $100,000 award for her pain and suffering and remit to $15,000 the $50,000 award for his own mental anguish over the loss of his house and its contents. Giancontieri agreed to the remittitur, and this appeal followed. Both parties assert numerous grounds for adjusting the damage awards upward or downward. ²

I.

Before considering the parties' challenges to the damage awards, several evidentiary issues must be disposed of. Pan Am cites three of the district court's evidentiary rulings as requiring reversal: 1) the admission of photographs of the bodies of the decedents; 2) the refusal to admit evidence that Giancontieri had contracted venereal disease during his marriage; and 3) the refusal to admit evidence of Giancontieri's remarriage until the end of trial, when Giancontieri himself testified.

Admission or exclusion of evidence during the course of the trial is the responsibility of the district judge, and, absent some abuse of discretion, his decisions will not be disturbed on appeal. E.g., Big John, B.V. v. Indian Head Grain Company, 718 F.2d 143, 146 (5th Cir.1983). Although "[a]ll relevant evidence is admissible," Fed.R.Evid. 402, the district judge has the discretion to exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.

Pan Am argues that admission of the photographs of the bodies of Giancontieri's

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family, three of them charred by fire, served no purpose other than to gain the jury's sympathy. Giancontieri counters that the photographs demonstrated that three of the decedents died of third degree burns and thus endured conscious pain and suffering prior to their deaths, and also corroborated the testimony of the two witnesses who described finding the bodies. While the testimony of the witnesses describing the discovery and condition of the bodies was not contradicted, and therefore there was little need to introduce the photographs in corroboration, we nonetheless conclude that their admission was not an abuse of discretion requiring reversal. Although unsettling, these photographs were not so gruesome that their prejudicial potential absolutely required their exclusion.

Likewise, we find no abuse of discretion in the district court's refusal to admit evidence of Giancontieri's contracting venereal disease. Giancontieri admitted on the stand that he had once been unfaithful to his wife; admission of the evidence of venereal disease would have proved nothing more. The decision that the prejudicial potential of this evidence outweighed its value was well within the district court's discretion.

Giancontieri's attorney obtained an in limine ruling prohibiting reference to Giancontieri's remarriage after the death of his family. After the testimony of the first witness, defendants' counsel informed the judge of his belief that Giancontieri's counsel was depicting Giancontieri as a completely broken man, unable to function in society, thus "opening the door" to evidence of the remarriage. Although the district judge substantially concurred in Pan Am's assessment of counsel for plaintiff's strategy, he nonetheless continued to exclude any inquiry into the subject of the remarriage until Giancontieri himself took the stand as the final witness. In the meantime, various of Giancontieri's relatives, acquaintances, and friends testified concerning his problems with readjustment. Many of their statements indicated that Giancontieri's mental condition showed no signs of improvement and that he was unable to maintain normal relationships. Pan Am contends that the tardy decision to admit evidence of Giancontieri's remarriage could not counter the effect of this misleading testimony.

Giancontieri argues that, based on the Louisiana jurisprudence we are bound to follow, evidence of the remarriage should not have been admitted at all. ³ The Louisiana decisions forbidding introduction of evidence of remarriage of the surviving spouse are primarily concerned that a defendant might use this evidence to attempt to mitigate the emotional damages occasioned by the loss of the spouse, which are considered to be fixed at the time of the loss. In this case, when the district court decided to admit evidence of plaintiff's remarriage it immediately cautioned the jury that this evidence was not to be used in any fashion to mitigate damages. This instruction was repeated in the final charge to the jury. In Caldarera v. Eastern Air Lines, we noted that the district court's decision to exclude evidence of a remarriage "is not subject to scrutiny by an appellate Bureau of Weights and Standards that balances the factors gram for gram," 705 F.2d at 782. The same holds true when evidence of the remarriage is admitted. The district court watching the drama of the trial unfold was in a much better position than are we to evaluate whether and at what point Pan Am should have been permitted to disclose this evidence to rebut plaintiff's evidence of his inability to function emotionally and to form and maintain relationships with others. We find no abuse of discretion in the district court's cautious handling of this delicate subject matter.

II. Propriety of the Damage Awards for Loss of Love and Affection

Pan Am contends that the damage awards for loss of love, affection and companionship

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for Giancontieri's wife and children are, even as remitted, excessive as a matter of law.

In evaluating the propriety of these awards, we start from the bedrock principle that the determination of the extent of damages is for the trier of fact, and in this area the appellate court should step lightly or not at all. Judge Rubin's precis of the law for this court in Caldarera v. Eastern Air Lines can hardly be improved upon:

Because the assessment of damages for grief and emotional distress is so dependent on the facts and is so largely a matter of judgment, we are chary of substituting our views for those of the trial judge. He has seen the parties and heard the evidence; we have only read papers.

The jury's assessment of damages is even more weighted against appellate reconsideration, especially when, as in the case of the award to Peter Caldarera, the trial judge has approved it. We do not reverse a jury verdict for excessiveness except on "the strongest of showings." The jury's award is not to be disturbed unless it is entirely disproportionate to the injury sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to "shock the judicial conscience," "so gross or inordinately large as to be contrary to right reason," so exaggerated as to indicate "bias, passion, prejudice, corruption, or other improper motive," or as "clearly exceed[ing] that amount that any reasonable man could feel the claimant is entitled to."

705 F.2d at 783-84 (footnotes and citations omitted)

Pan Am also contends that in this diversity case, Erie Railroad Co. v. Tompkins dictates that we may not affirm an award higher than that which would be allowed by the highest court of the state whose law we are applying. There is some apparent conflict in the cases concerning whether the excessiveness of a verdict is a matter governed by state or federal law, ⁴ but it is not necessary that we attempt here to resolve whatever conflict there may be. The Louisiana standard for determining whether a verdict is excessive is set forth in Reck v. Stevens, 373 So.2d 498 (La.1979):

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determines that the award is excessive.... Thus, the initial inquiry must always be directed at whether the prior court's award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of facts 'much discretion,' ... in the award of damages.... In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function.... The prior awards may serve as an aid in this determination only where, on an articulated basis, the present...