Caldarera v. Eastern Airlines, Inc.
| Decision Date | 27 May 1983 |
| Docket Number | No. 82-3186,82-3186 |
| Citation | 705 F.2d 778 |
| Parties | 12 Fed. R. Evid. Serv. 1996 Peter Joseph CALDARERA, Jr., etc., et al., Plaintiffs-Appellees, v. EASTERN AIRLINES, INC., and United States of America, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Deutsch, Kerrigan & Stiles, Francis G. Weller, Marc J. Yellin, New Orleans, La., for defendants-appellants.
Joseph S. Cage, Jr., U.S. Atty., John R. Halliburton, Asst. U.S. Atty., Shreveport, La., H. Richmond Fisher, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., Elizabeth A. O'Conwell, Asst. U.S. Atty., New Orleans, La., for U.S.
Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Edward M. Carmouche, Lake Charles, La., for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Louisiana.
Before RUBIN, GARZA and WILLIAMS, Circuit Judges.
After a trial in which the sole issue was the amount of damages caused by the death of three persons in a plane crash, 1 the jury returned a verdict of $937,500 against Eastern Airlines in favor of Peter Caldarera for the death of his mother, wife, and eight-year-old son and a verdict of the same amount in favor of Christopher Moore Caldarera, who was four years old at the time of the disaster, for loss of his mother. The district court returned a verdict under the Federal Tort Claims Act against the United States, as joint defendant, in favor of Christopher for $400,000 and in favor of Peter for $797,480. On post-trial motions, the court refused to alter the jury award in favor of Peter, but reduced the award in favor of Christopher to $600,000. Eastern contends that opposing counsel took an unfair shot at it in closing argument, the trial court improperly excluded evidence of Peter's remarriage, the verdict was excessive, and the jury should have been polled post-discharge about its verdict because its award of identical amounts on each of the plaintiffs' entirely distinct claims indicates a misunderstanding of their instructions. We find no reversible error in the trial or in the court's refusal to interrogate the jury after its discharge, but we grant a new trial on the quantum of damages unless the plaintiffs accept a remittitur reducing the awards to the maxima we consider allowable on the record--$797,480 for Peter and $300,000 for Christopher.
The Caldareras' counsel concedes that he made an improper argument to the jury. The suit was tried in Lake Charles, Louisiana, home of the plaintiffs and their counsel, the claim against Eastern to a jury, and the claim against the United States to the court. In his final argument, plaintiffs' counsel told the jury:
Then he [Eastern's counsel] talked about community standards. He is coming over here from New Orleans and he is going to argue to a jury community standards, to tell you about community standards. Six years ago Mr. Weller's client took a member of our community's money for plane tickets. He put them on a plane and killed them. Then they hired a lawyer to come back to this community and tell you three words. I can sum up what Eastern Airlines' position is in this case in three words. Life is cheap. That is what they told you. Let me tell you something. Life may be cheap in New Orleans, or New York, or wherever Eastern is based, where people will slit your throat on the street to get the money out of your pocket. But life in Southwest Louisiana is precious....
Eastern immediately objected to this patently improper argument, but did not ask for a mistrial. The district judge promptly instructed the jury to ignore the remark. Eastern did not object to the instruction, ask for an additional instruction, or at any time later during the trial seek a mistrial.
The only question for us is whether the judge should have ordered a new trial because the damage done by this inflammatory argument was irreparable. A trial judge is generally better able than an appellate court to evaluate the prejudice flowing from improper jury arguments. His denial of a motion for new trial based on improper statements is reversible only for abuse of discretion. 2 The district judge who has had long trial experience on both the state and federal bench, was best able to measure the impact of improper argument, the effect of the conduct on the jury, and the results of his efforts to control it. Our review is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on the jury or to sense the atmosphere of the courtroom. Eastern's failure to move for a mistrial is also significant. By doing so, and by acquiescing in the court's corrective charge, it got a chance to see the verdict and then to seek to overturn it. 3 Accordingly, we affirm the trial judge's determination that the effect of the improper argument was sufficiently dissipated by his instruction.
This diversity case was governed by Louisiana law. Louisiana forbids evidence of remarriage in a suit seeking damages for the loss of a spouse. 4 This precept is followed in most other jurisdictions. 5 That rule binds us. 6
The defendants argue that the Caldareras opened the door to such evidence by testimony concerning whether Peter Caldarera's emotional problems have persisted since the loss of his mother, wife, and child. They contend that, on cross-examination, they should have been allowed to establish that his more recent emotional difficulties stemmed from his remarriage. These arguments were carefully considered by the trial judge. He found that there were alternative ways to determine, by examining the psychiatrist-witness, whether some of Mr. Caldarera's problems resulted from causes other than the deaths of his wife, mother and son, and that the prejudicial effect of evidence of the second marriage outweighed its probative value. Fed.R.Evid. 403. 7 His finding is not subject to scrutiny by an appellate Bureau of Weights and Standards that balances the factors gram for gram. The trial court may exercise judgment on the basis of his own opinion of the effect the evidence will have, considering the courtroom surroundings. We do not find reason to question his conclusion.
Eastern contends that the jury's award of exactly $937,500 in damages for each plaintiff, Peter Caldarera and his son, Christopher, indicates either that the jury misunderstood their instructions or intended to allow that sum to be divided between them. When the jury returned its verdict, the jurors were polled but no inquiry about the amount was requested or made. Seventeen days after the jury had been discharged, Eastern sought to have the court ask the jury the meaning of its verdict. Counsel have found no authority for the court to inquire, after the jurors' discharge, into whether they really meant what they said. Neither have we. Post-trial inquisition of jurors is not favored, 8 unless there is some showing of prejudicial intrusion into the jury process that may have affected the verdict. 9 We cannot condemn the verdict as defective on its face because the awards were identical, even though the elements of damages sought by the respective plaintiffs differed. The trial court was "satisfied that there was no mistake as to the jury's intention." 10 We will not, therefore, order a new trial on a possibility that did not even occur to counsel until the jury had been discharged.
Eastern argues, alternatively, that the jury verdict should be set aside as excessive. Because the trial judge was required to determine the plaintiffs' damages and to enter a judgment for that amount against the United States, he calculated independently the recompense due to the plaintiffs for their losses. He recognized that, by his calculations, the jury award to Peter was generous. He chose, however, to grant a remittitur only on the award to Christopher, and he reduced this to $600,000, reasoning that a jury award up to $200,000 more than his own calculation of a reasonable award should be allowed to stand. 11
For the purpose of assessing damages against the United States, the judge itemized the damages Peter Caldarera suffered as follows:
Loss of companionship, love, and
affection and physical and mental
anguish as a result of the death of his
33-year-old wife $400,000
Loss of companionship, love, and
affection and physical and mental
anguish from the death of his
63-year-old mother 100,000
Loss of companionship, love, and
affection and physical and mental
anguish from the death of his
eight-year-old son 150,000
Funeral expense 12,500
Property damage 500
Loss of services by his wife 134,021
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$797,021
The trial judge calculated that Christopher had suffered damages of $400,000 as a result of the loss of the companionship, love, affection, nurture, guidance, and support of his mother, and his physical and mental anguish consequent to his mother's death. Louisiana law does not give Christopher a cause of action for the loss of his brother and grandmother. 12 The facts found by the district judge affecting the determination of damages are set forth in his opinion. 13 They are, indeed, compelling. The district judge's assessment of the damages, being findings of fact, are, of course, shielded against reversal unless "clearly erroneous." 14 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...
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