Air Crash Disaster at New Orleans, La., In re
Decision Date | 09 July 1982 |
Parties | In re AIR CRASH DISASTER AT NEW ORLEANS, LOUISIANA on |
Court | U.S. Court of Appeals — Fifth Circuit |
Robert E. Kerrigan, Jr., Marc J. Yellin, New Orleans, La., for defendant-appellant.
Robert M. Murphy, Wendell H. Gauthier, Metairie, La., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WISDOM, RUBIN, and HIGGINBOTHAM, Circuit Judges.
Pan American World Airways Flight 759 crashed on takeoff from the New Orleans airport on July 9, 1982. In this appeal, we apply the substantive law of Louisiana in reviewing judgments for three children whose parents were among the 138 passengers killed when the Boeing 727 disintegrated on impact. Pan American challenges the allowance of loss of inheritance damages; the amount of the primary damage award; and numerous rulings by the court below. We are persuaded that the evidence in support of the claimed loss of inheritance was too speculative and that the remaining awards of the jury were so excessive as to require a new trial. We reverse in part, vacate in part, and remand for a new trial.
When Flight 759 crashed, Ted and Margaret Eymard had three children: Ted, Jr., age 9; Natalie, age 6; and Tenille, age 3. Margaret was in her last trimester of pregnancy with a fourth child at her death.
This diversity suit against Pan American was brought on behalf of the children by Pearl Crosby Eymard, their paternal grandmother and legal guardian. Pan American conceded liability before trial and the amount of damages was the only issue before the jury. Most of the trial testimony focused on the prospects that a number of marine companies, owned and operated by Ted Eymard, Sr. and various relatives, had at the time of Eymard's death.
Sometime after the air crash, the Eymard companies entered into Chapter 11 bankruptcy. The parties disputed the amount of future income Ted Eymard, Sr. would have had available to spend on behalf of his children had he lived, and how much he would have ultimately accumulated for their inheritance. Plaintiffs' evidence tended to show that Ted Eymard was the key figure in the management of the Eymard companies, which grew under his direction from a four or five boat operation to a group of companies grossing approximately $11 million per year at the time of his death. Witnesses for the plaintiffs testified that without Ted's financial and organizational leadership, and his entrepreneurial vision, the companies were unable to weather a down cycle in the marine industry similar to others they had survived under Ted's direction in the 1970's. Witnesses for Pan American, on the other hand, contended that Ted died just before a downturn in the Louisiana marine industry more serious than those already experienced, and that an unwise purchase of an offshore business, coupled with the highly-leveraged nature of the companies, made bankruptcy inevitable even had he lived. Other testimony focused on the Eymard's relationship with the children, their spending habits and assets, the future financial needs of the children, and details of the crash.
The jury awarded the children a total of $3,600,000. Responding to global inquiries, the jury awarded each child $1,100,000 for all their damages arising out of the loss of their parents, excluding their loss of inheritance. The jury also awarded $100,000 to each child for loss of inheritance. The trial judge denied Pan American's post-trial motions for a new trial, for judgment notwithstanding the verdict, and to amend the judgment.
Pan American raises numerous issues on appeal, but we reach only two: whether an award for loss of inheritance should have been allowed, and whether the primary award was excessive.
Recovery for loss of inheritance under Louisiana law was vigorously disputed at trial. Given its uncertainty under Louisiana tort law, the trial judge wisely separated it from the other elements of damage, allowing the jury to make an award without visiting its uncertain status upon the other claims.
Recently, in Marks v. Pan American Airways, Inc., 785 F.2d 539 (5th Cir.1986), we faced the issue of whether loss of inheritance is a recoverable item of damage in a Louisiana wrongful death action under Louisiana Civil Code art. 2315. We noted that an early Louisiana case, Eichorn v. New Orleans C.R. Light & Power Co., 114 La. 712, 38 So. 526 (1905), held that loss of inheritance was not recoverable; we also observed, however, that Louisiana's wrongful death statute at that time distinguished between adult and minor children, restricting recovery to spouses and minor children. Marks, 785 F.2d at 541. Since Eichorn, article 2315 has been amended to put children of the age of majority in the primary class of survivors entitled to bring a wrongful death claim. Because no Louisiana case has squarely decided whether Eichorn survived the amendments, we noted that ordinarily, "we would make an Erie prediction of the response of the Louisiana Supreme Court as to Eichorn's continued viability." Id. at 542. We found such a prediction unnecessary in Marks, however, holding that the evidence in support of such an award was too speculative even if allowed under Louisiana law. Id. at 542-43.
We reach the same conclusion in this case. As in Marks, plaintiffs offered the expert testimony of an economist who projected the decedent's future income from an analysis of his personal tax returns and other financial information pertaining to the Eymard companies. We find the economist's "opinion" that the collective loss of inheritance for the three children was $1,778,873 to be completely airborn, premised as it was on assumptions without basis in the real world of Ted and Margaret Eymard.
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Since the adoption of the Federal Rules of Evidence in 1975, we have accorded trial courts considerable discretion in determining the admissibility of opinion evidence by experts. We have said that the discretion is "broad" and that the determination of admissibility should be sustained "unless manifestly erroneous." See United States v. Johnson, 575 F.2d 1347, 1360 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979); Crawford v. Worth, 447 F.2d 738, 740-41 (5th Cir.1971). This deference reflects the superior opportunity of the trial judge to gauge both the competence of the expert and the extent to which his opinion would be helpful to the jury. Despite the seeming breadth of the language we have used to describe this deference, trial court rulings regarding the admission of expert testimony remain reviewable. We have not left all such decisionmaking to trial judges, nor should we.
Basic policy questions that affect the very nature of a trial lie behind decisions to receive expert testimony. Under the Federal Rules of Evidence, experts not only explain evidence, but are themselves sources of evidence. These two roles, though related, are quite distinct. In deciding whether explanation by an expert will assist the jury or judge, the superior position of the trial judge over the appellate judge is apparent. By comparison, in deciding whether evidence should be allowed from this source, the trial judge draws less upon the scene and the cast immediately before him, and more upon the substantive law. To the extent that the decision to allow expert testimony as a source of evidence is significantly intertwined with the underlying substantive law, we will accord it less deference, and take a much closer look.
For example, in the typical products liability case, the jury is asked to decide whether a product was defective. Stripped to essentials, jury instructions regarding defect are little more than an open-ended request to balance utility and safety. Absence of rigor in the inquiries that determine liability does not necessarily result from poor drafting of the charge; rather, the difficulty is often inherent in the underlying substantive law. This is not the occasion for an attack upon that difficulty. Our point is that the ultimate issue in such cases can too easily become whatever an expert witness says it is, and trial courts must be wary lest the expert become nothing more than an advocate of policy before the jury. Stated more directly, the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument. Indeed, the premise of receiving expert testimony is that it " will assist the trier of fact to understand the evidence or to determine a fact in issue...." Fed.R.Evid.Rule 702.
Our customary deference also assumes that the trial judge actually exercised his discretion. In saying this, we recognize the temptation to answer objections to receipt of expert testimony with the shorthand remark that the jury will give it "the weight it deserves." This nigh reflexive explanation may be sound in some case, but in others it can mask a failure by the trial judge to come to grips with an important trial decision. Trial judges must be sensitive to the qualifications of persons claiming to be expert. Because the universe of experts is defined only by the virtually infinite variety of fact questions in the trial courts, the signals of competence cannot be catalogued. Nevertheless, there are almost always signs both of competence and of the contribution such experts can make to a clear presentation of the dispute. While we leave their detection to the good sense and instincts of the trial judges, we point by way of example to two. First, many experts are members of the academic community who supplement their teaching salaries with consulting work. We know from our judicial experience that many such able persons present studies and express opinions that they might not be willing to express...
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