Arnold v. Eastern Air Lines, Inc.

Decision Date04 June 1982
Docket NumberNos. 80-1245,s. 80-1245
Citation681 F.2d 186
Parties10 Fed. R. Evid. Serv. 1201 Richard ARNOLD, IV, Appellee, v. EASTERN AIR LINES, INC., Appellant, v. UNITED STATES of America, Appellee. Francis C. MIHALEK, Appellee, v. EASTERN AIR LINES, INC., Appellant, v. UNITED STATES of America, Appellee. Helen Rae WESTON, as Executrix of the Estate of Lewis M. Weston, deceased, Appellee, v. EASTERN AIR LINES, INC., Appellant. The AETNA CASUALTY AND SURETY COMPANY; Aetna Insurance Company; American Empire Insurance Company; Commercial Union Insurance Company; Compagnies D'Assurances Du Groupe; Concorde; Continental Casualty Company; Employers Mutual Liability Insurance Company of Wisconsin; Hartford Fire Insurance Company; Industrial Indemnity Company; Maryland Casualty Company; Reliance Insurance Company; Royal Indemnity Company; St. Paul Fire and Marine Insurance Company; Security Insurance Company of Hartford; The Travelers Indemnity Company; Underwriters at Lloyd's and Associated British Insurance Companies; United States Fidelity and Guaranty Company; United States Fire Insurance Company; Zurich Insurance Company, Appellants, v. UNITED STATES of America; Bernard C. Groseclose; Alden E. Hare; William L. Hogan; Dennis L. Hunter, Appellees. to 80-1247 and 80-1334.
CourtU.S. Court of Appeals — Fourth Circuit

William C. Raper, Winston-Salem, N. C. (H. Grady Barnhill, Jr., Womble, Carlyle, Sandridge & Rice, Winston-Salem, N. C., on brief), for appellant Eastern Air Lines, Inc. Walter E. Rutherford, New York City, for appellants Aetna Casualty and Surety Co., et al.

Gary S. Hemric, William K. Diehl, Jr., Charlotte, N. C. (Robert H. Sheppard, James McElroy & Diehl, P.A., Charlotte, N. C., on brief), and Robert R. Smiley, III, Washington, D. C. (Smiley, Murphy, Olson & Gilman, Washington, D. C., on brief), for appellees Richard Arnold, IV, Francis C. Mihalek and Helen Rae Weston.

Michael J. Pangia, Asst. Chief Counsel, Litigation Div., F. A. A., Washington, D. C., for appellees Groseclose, Hare, Hogan, Hunter, and United States of America.

Before BRYAN, Senior Circuit Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.


These consolidated appeals grow out of the crash of Eastern Airlines Flight No. 212 near Charlotte, North Carolina on September 11, 1974, which resulted in the deaths of 69 passengers and 2 crew members and serious personal injuries to 9 passengers and 2 crew members who survived. Four resulting lawsuits consolidated for trial generate these appeals. In Nos. 80-1245, 80-1246, and 80-1247, respectively, Eastern Airlines (Eastern) appeals the award of compensatory damages aggregating over $4 million to surviving passengers Arnold and Mihalek and the award of wrongful death damages of $797,000 to the personal representative of deceased passenger Weston, and in Nos. 80-1245 and 80-1246, Eastern appeals the denial of its third party claims for contribution against the United States of America in respect of the Arnold and Mihalek personal injury actions. In No. 80-1334 The Aetna Casualty and Surety Company and other insurers of Eastern (Aetna) appeal the dismissal, following trial to the court and jury respectively, of their action against the United States and four individual air traffic controllers for contribution in respect of their out of court settlements of claims by or on behalf of other crash victims and of a property damage claim for destruction of the aircraft. We affirm the judgment in all respects save the award of wrongful death damages in the Weston action; as to that we find reversible error and remand for a new trial.


Following the crash of Flight 212 the great bulk of the ensuing claims by and on behalf of surviving and deceased crash victims were settled out of court by Eastern's insurers. A total of around $22 million was paid in these settlements, and another $3,281,000 was paid in settlement of the aircraft owner's property damage claim.

Not all the claims were settled however. In March and September, 1976, respectively, surviving passengers-plaintiffs Arnold and Mihalek commenced diversity actions against Eastern in the United States District Court for the Western District of North Carolina seeking, on allegations of negligence, compensatory and punitive damages for their personal injuries. In September 1976, plaintiff Helen Weston as Executrix of the Estate of deceased passenger Lewis M. Weston, commenced a diversity action in the United States District Court for the District of South Carolina seeking, on allegations of negligence, compensatory and punitive damages for the wrongful death of her decedent. In the Arnold and Mihalek actions (but not the Weston action) Eastern impleaded the United States on allegations of the concurring negligence of certain government employees on duty as air traffic controllers at the time of the crash, and sought on this basis contribution from the government in respect of Eastern's potential liability. In its responsive pleadings to the personal injury and wrongful death claims Eastern admitted liability for compensatory damages 1 but denied liability for punitive damages.

In February 1977 Aetna and the other insurers of Eastern commenced an action in the United States District Court for the Western District of North Carolina against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 et seq., and against four federal air traffic controllers under North Carolina common law, alleging concurring negligence by these defendants and seeking on that basis contribution 2 in respect of amounts paid by the insurers in making the out of court settlements noted above.

After all four of these actions 3 had been transferred to the Charlotte Division of the Western District of North Carolina under the guidelines for complex and multi-district litigation, the district court, in early November 1977, sua sponte ordered them consolidated for discovery and trial, subject to reconsideration as to the trial aspect following the completion of discovery. Discovery then proceeded in the consolidated actions until mid-October, 1979. Shortly after completion of discovery Eastern and Aetna moved to sever the Aetna action for trial in order to avoid prejudice to Eastern. After considering alternative proposals respecting the appropriate procedure, the district court denied the motion for severance, and the consolidated actions proceeded to trial.

Following a three-week trial to court and jury, 4 the jury, after seventeen hours of deliberation, returned verdicts awarding substantial compensatory damages, but denying any punitive damages, on the Arnold, Mihalek and Weston claims and finding the air traffic controllers not liable on Aetna's claim for contribution. Arnold was awarded $3,027,500; Mihalek, $1,137,500; and Weston's representative, $847,000. Following briefing and argument of various post-trial motions by the parties, the district court declined to disturb the jury verdicts in any save one particular. On the Weston wrongful death verdict the court determined that it had erred in submitting pain and suffering to the jury as a compensable item of damages and, to correct this error, ordered a remittitur of $50,000, reducing the award to $797,000, which the plaintiff accepted. As so reduced, the court let this verdict stand. On Eastern's third party claim and Aetna's separate claim against the United States for contribution that were tried to the court non-jury, the court made findings of fact and conclusions of law against the claimants, finding the United States not liable for contribution on either claim.

From the final judgment in favor of the personal injury and wrongful death claimants on their claims and against Eastern and Aetna on their respective cross-claim and claim for contribution, Eastern and Aetna have appealed. They assign a number of errors, some commanding more discussion than others, to which we now turn. Further background facts and details of the proceedings will be developed as needed in discussing particular assignments of error.


Eastern's three principal assignments of error-two of which are paralleled in Aetna's assignments-all relate ultimately to the amount of compensatory damages awarded in the personal injury and wrongful death actions. Though subject to independent analysis, the errors asserted are in the end so interrelated that we will discuss them as a discrete cluster. 5

Both Eastern and Aetna complain first, in chronological terms, of the refusal of the court to sever the originally consolidated actions into two separate trial units: one consisting of the main claims against Eastern together with Eastern's two related third party claims for contribution against the United States; the other, of Aetna's action for contribution against the United States and the four individual air traffic controllers. Eastern claims that consolidated trials (the denial of severance) resulted in prejudicially inflated damage awards against it; Aetna, that it resulted in the introduction into its case of prejudicial irrelevances related to Eastern's culpability; and that indeed there were not between the two units sufficient common issues to permit consolidation under Rule 42(a).

Eastern and Aetna then join in complaining of grossly improper conduct by opposing counsel 6 in making comments and arguments directly to, and in the presence of, the jury. These, they claim, were not adequately corrected by the trial judge and, in consequence, resulted in demonstrable prejudice: to Eastern in the form of prejudicially inflated damage awards; to Aetna, by unfairly prejudicing the jury in respect of the bona fides of the insurers' claims for contribution.

Eastern additionally assigns as error the trial judge's refusal to set aside the damage awards as being excessive and the result, however excited, of passion and prejudice.

We take these in order and in...

To continue reading

Request your trial
275 cases
    • United States
    • U.S. District Court — District of Colorado
    • July 18, 1989
    ... ... Defendants are Continental Airlines, Inc., and Texas Air Corporation. In January of 1989, consolidated claims were ... Co., 749 F.2d 127, 131 (2d Cir.1984); Polglase v. Greyhound Lines, Inc., 401 F.Supp. 335, 337 (D.Md. 1975). Although we can locate no Idaho ... ) (severance of products liability claims not abuse of discretion); Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 192 (4th Cir.1982) (severance ... ...
  • Int'l Union, United Mine Workers of Am. v. Consol Energy, Inc.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • June 4, 2020
    ... ... has taken note of arguments made by both CONSOL and the Subsidiaries on the shared issues and lines of argument, and may merge the arguments as being made by "defendants" where applicable. This ... Litig. , 219 F.R.D. 369, 371 (M.D.N.C. 2003) (citing Arnold v. Eastern Air Lines, Inc. , 681 F.2d 186, 193 (4th Cir. 1982) ). Here, the court finds that the ... ...
  • Durflinger v. Artiles
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 27, 1984
    ... ... United States, 719 F.2d 1485, 1490 (10th Cir.1983); Scholz Homes, Inc. v. Wallace, 590 F.2d 860 (10th Cir.1979). At no time did the trial court ... Arnold v. Eastern Air Lines, Inc., 681 F.2d 186 (4th Cir.1982), cert. denied, --- ... ...
  • Trout v. Garrett
    • United States
    • U.S. District Court — District of Columbia
    • November 27, 1991
    ... ... 1977); Rossini v. Ogilvy & Mather, Inc., 615 F.Supp. 1520, 1534-35 (S.D.N.Y.1985), rev'd on other grounds, 798 ... liable for discrimination that is not actionable under United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), and ... , Jackson & Curtis, Inc., 724 F.2d 1456, 1457 (11th Cir.1983); Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 206 n. 22 (4th Cir.1982); ... ...
  • Request a trial to view additional results
1 books & journal articles
  • RSI defendants fight for due process: "mass torts" needn't always be massive.
    • United States
    • Defense Counsel Journal Vol. 63 No. 1, January 1996
    • January 1, 1996
    ...cases against one principal defendant by plaintiffs alleging various injuries from ingesting Cleocin); Arnold v. Eastern Airlines Inc., 681 F.2d 186 (4th Cir. 1982), cert. denied, 460 U.S. 1102 (1983) (consolidating four wrongful death actions arising from one airplane crash); in re Joint E......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT