Brun-Jacobo v. Pan American World Airways, Inc.

• Decision Date: 17 June 1988
• Docket Number: BRUN-JACOB,A,No. 87-3127,87-3127
• Citation: 847 F.2d 242
• Parties: Susana Beatrizna Esther Brun-Jacobo, and Alberto E. Brun-Jacobo, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., and United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 242

847 F.2d 242

11 Fed.R.Serv.3d 585

Susana Beatriz BRUN-JACOBO, Ana Esther Brun-Jacobo, and Alberto E. Brun-Jacobo, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., and United States of America, Defendants-Appellants.

No. 87-3127.

United States Court of Appeals Fifth Circuit.

June 17, 1988.

Frederick R. Bott, Marc J. Yellin, Deutsch, Kerrigan & Stiles, John P. Volz, U.S. Atty., New Orleans, La., for defendants-appellants.

Stephen B. Murray, Patricia R. Murray, Murray Law Firm, New Orleans, La., for plaintiffs-appellees.

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

Before WISDOM, GARWOOD, and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

In this wrongful death Louisiana diversity case, defendant-appellant Pan American World Airways, Inc. (Pan Am), following retrial, appeals the district court's grant of the motion for new trial of plaintiffs-appellees Susana Beatriz Brun-Jacobo, Ana Esther Brun-Jacobo, and Alberto Eduardo Brun-Jacobo (collectively, the Brun-Jacobos). We hold that the district court erred in granting the motion for new trial, and we remand the case with instructions to reinstate the original jury verdict and judgment thereon.

Facts and Proceedings Below

On July 9, 1982, Pan Am Flight 759 crashed four to six seconds after its left wing clipped a tree just following takeoff from New Orleans International Airport, killing all on board. Among the passengers traveling on that flight were the Brun-Jacobos' parents, Alberto Brun-Bonino and Selva Grecia Jacobo-Denis de Brun. They apparently died instantly on impact. The Brun-Jacobos' parents, like the Brun-Jacobos themselves, were Uruguayan residents and citizens. On August 12, 1982, the Brun-Jacobos, all of whom were adults at the time of the crash, filed suit against Pan Am and other defendants seeking damages for the parents' conscious mental anguish and for appellees' loss of the love, affection, and companionship of their parents. Pecuniary or economic damages (such as loss of contributions or inheritance) were not claimed at trial. There was no evidence of post-impact survival, and this was not submitted to the jury. Liability was not contested.

At the first trial, which began on May 27, 1986 and was on damages only, the jury returned a verdict awarding $65,000 to each of the Brun-Jacobos for the loss of the love, affection, and companionship of their parents. ¹ The jury also awarded $20,000 for the pre-impact mental anguish of each decedent. These were the only items submitted. The district court entered judgment accordingly. Shortly thereafter, the Brun-Jacobos filed a motion for new trial. On September 4, 1986, the district court granted this motion, stating that the awards for loss of parental love, affection, and companionship were the result of bias or prejudice against appellees as foreigners or Uruguayans. In making this determination, the district court did not refer to any independent or specific evidence or manifestation, direct or circumstantial, of bias or prejudice. The court simply compared the awards in the present case with those in other cases arising from the same plane crash and concluded that because the amounts were substantially lower in the present case, the jury must have been influenced by such bias or prejudice. At the second trial, held on January 12, 1987 and likewise on damages only, the amounts awarded were greater. For the pre-impact mental anguish of each decedent, the jury awarded $25,000; for the loss of the parents' love, affection, and companionship, it awarded the Brun-Jacobos $110,000 each. ² As before, these were the only items submitted. The district court entered judgment on the second verdict, and this appeal followed.

Discussion

As a general rule, the decision to grant or deny a motion for new trial is committed to the sound discretion of the district court and is reversible only for an abuse of that discretion. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.1982); see Koonce v. Quaker Safety Products & Manufacturing Co., 798 F.2d 700, 718 (5th Cir.1986); Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985). When the district court denies a motion for new trial, appellate review is especially deferential because in that instance deference to the district court operates in harmony with deference to the jury's determination of the weight of the evidence and the constitutional allocation to the jury of questions of fact. Shows, 671 F.2d at 930 (citing Taylor v. Washington Terminal Co., 409 F.2d 145, 148 (D.C.Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969); Massey v. Gulf Oil Corp., 508 F.2d 92, 94-95 (5th Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57 (1975)). However, when the district court grants a motion for new trial, appellate review is broader because in that situation the deference due the district court is in conflict with the deference due the jury. Shows, 671 F.2d at 930 (citing Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362 (5th Cir.1980) (per curiam)). In the present case, the district court determined that the amounts awarded by the first jury as damages for loss of parental love, affection, and companionship were the product of bias or prejudice against the appellees because they were Uruguayan and therefore decided to grant the Brun-Jacobos' motion for new trial. Because this order necessarily entailed the setting aside of the first jury's verdict, under the above standards it "must undergo careful appellate scrutiny." Narcisse v. Illinois Central Gulf Railroad Co., 620 F.2d 544, 546 (5th Cir.1980) (citing Spurlin v. General Motors Corp., 528 F.2d 612, 620 (5th Cir.1976); Cities Service Oil Co. v. Launey, 403 F.2d 537, 539-40 (5th Cir.1968)).

In its written order, the district court stated that it was granting the motion for new trial because the jury must have been biased or prejudiced against the Brun-Jacobos. In reaching this conclusion, however, the district court did not identify any particular act, occurrence, or circumstance as indicative of bias or prejudice. It simply compared the amounts awarded to the Brun-Jacobos by the first jury for loss of parental love, affection, and companionship with the amounts awarded to other plaintiffs for such loss in other cases arising from the same plane crash, and concluded that because the amounts awarded in the present case were significantly lower than those awarded in the other referenced cases arising from this disaster, the jury must have been biased against appellees because they were Uruguayan.

Like the district court, appellees, apart from the size of the verdict, point to no circumstance or occurrence in connection with the first trial suggesting possible bias or prejudice. No statement by any actual or prospective juror, or by the court or any witness, or by any counsel, in argument, opening statements, when addressing the court, questioning witnesses, or otherwise, is identified which might be viewed as potentially prejudicial in this respect. Nothing in the composition of the jury or venire or the exercise of peremptory strikes or challenges for cause, is mentioned. No potential source of any extraneous influence is specified. Nor does our review of the record reflect any such. This trial was relatively simple and lasted but part of two days. The transcript, from initial instructions and opening statements through final argument, charge, and verdict, runs only some 150 pages. Appellees' counsel made no complaints of the jury and did not object to any of the evidence or the rulings or instructions of the court in the first trial. Moreover, the court there properly instructed the jury that:

"In this case, since there are citizens of Uruguay who are litigating here in the United States Court, I tell you the obvious, that is, that they're entitled to the same fair trial as if they were United States citizens. A corporation: The United States Government, Pan American everybody, no matter whether it's a large or small corporation, everybody is entitled to the same fair trial at your hands. Everyone stands equal before the law, and all are to be dealt with equally in a court of justice."

No claim of bias or prejudice against appellees was made in their motion for new trial, nor did it point to any asserted trial error. Appellees merely contended that the award was inadequate and contrary to the great weight of the evidence.

While it is perhaps conceivable that an award might be so unreasonably low--or high--as to itself constitute a sufficient indication of invidious bias or prejudice against a party who might be particularly vulnerable to such improper considerations, a matter which we need not decide, this is clearly not such a case.

We note to begin with that the first trial finding that each parent suffered $20,000 pre-impact mental anguish is somewhat above other similar awards in respect to this particular disaster. See Haley v. Pan American World Airways, 746 F.2d 311, 317 (5th Cir.1984) ($15,000, sustained against challenge as excessive); Pregeant v. Pan American World Airways, 762 F.2d 1245, 1248 & n. 2, 1249 (5th Cir.1985) ($16,000); In re Air Crash Disaster Near New Orleans, La., 789 F.2d 1092, 1098-99 (5th Cir.1986) (Pampin ), panel holding on this issue aff'd en banc, 821 F.2d 1147, 1169-71 (5th Cir.1987) ($25,000, remitted to $7,500; evidence weaker than in Pregeant ). ³ While, as Pampin illustrates, not all death cases from the same aircraft crash have the same proof on this issue, nevertheless they are usually quite similar as to pre-impact mental anguish, for the proof is generally (and was here) entirely circumstantial and only a very brief time (measured in a few seconds here) is involved. ⁴ While the proof in this case is closer to Pregeant than Pampin, it is nevertheless clear that the first jury's award as to this item was on the high, rather than the low, side....