D'ANGELO v. United States

• Decision Date: 21 June 1978
• Docket Number: 77-171 and 76-2036 (E.D.Pa.).,Civ. A. No. 75-146
• Citation: 456 F. Supp. 127
• Court: U.S. District Court — District of Delaware
• Parties: Edeltraud B. D'ANGELO, Individually, and as Executrix of the Estate of John P. D'Angelo, and to the use of John P. D'Angelo, Jr., Richard D'Angelo, Cecilia D'Angelo, Thomas D'Angelo, Mary Martha D'Angelo, Barbara Ann D'Angelo, Theresa Lee D'Angelo, and Catherine Joan D'Angelo, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. ATLANTIC AVIATION CORPORATION, Third-Party Defendant.

456 F. Supp. 127

Edeltraud B. D'ANGELO, Individually, and as Executrix of the Estate of John P. D'Angelo, and to the use of John P. D'Angelo, Jr., Richard D'Angelo, Cecilia D'Angelo, Thomas D'Angelo, Mary Martha D'Angelo, Barbara Ann D'Angelo, Theresa Lee D'Angelo, and Catherine Joan D'Angelo, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. ATLANTIC AVIATION CORPORATION, Third-Party Defendant.

Civ. A. Nos. 75-146, 77-171 and 76-2036 (E.D.Pa.).

United States District Court, D. Delaware.

June 21, 1978.

COPYRIGHT MATERIAL OMITTED

Thomas J. Feeney, of Kania & Garbarino, Bala Cynwyd, Pa., for plaintiff Edeltraud B. D'Angelo.

James W. Garvin, Jr., U. S. Atty. for the District of Delaware by Kent W. Walker and John X. Denney, Jr., Asst. U. S. Attys., Wilmington, Del., for defendant and third-party plaintiff United States of America.

David L. Steck, of Rawle & Henderson, Philadelphia, Pa., and Franklin S. Eyster, III, Gen. Counsel, Atlantic Aviation Corp., Wilmington, Del., for third-party defendant Atlantic Aviation Corporation.

OPINION with FINDINGS OF FACT and CONCLUSIONS OF LAW

LAYTON, Senior District Judge.

This case is part of a consolidated action arising out of the May 16, 1974, crash of a Piper Cherokee airplane at the Wicomico County Airport near Salisbury, Maryland. Just as the plane left the ground upon take-off, it was struck in the rear by a jeep that was owned by the United States and driven by a Government employee. Before the pilot was able to land the plane safely, it plunged to the runway and both of its occupants were killed. One of the men who died in the crash was John P. D'Angelo, a helicopter pilot who was taking instrument flight instruction at the time.

Edeltraud B. D'Angelo, the widow of John P. D'Angelo and the executrix of his estate, brought a wrongful death and survival action against the United States under the Federal Tort Claims Act. This action was commenced in the Eastern District of Pennsylvania but was transferred to this Court, pursuant to an order of the Judicial Panel on Multidistrict Litigation, for coordinated pre-trial proceedings with two other suits commenced by the widow of the other occupant of the Piper Cherokee and the owner of the plane. Thereafter, by stipulation of the parties, the D'Angelo action was consolidated with the other actions in this Court for all trial and post-trial purposes.

Trial of these consolidated actions was bifurcated. The liability phase was tried to this Court on July 25-27, 1977. Sitting without a jury, this Court held that the Government was liable in damages to all of the plaintiffs. Atlantic Aviation Corp. v. United States, C.A. No. 75-146 (Consolidated) (D.Del., Oct. 27, 1977) (unpublished memorandum opinion).

On January 31, and February 1-2, 1978, a trial was conducted as to damages. Extensive post-trial briefing has been completed and this case is in a posture for final disposition. I will treat each action separately and will make the appropriate findings of fact and conclusions of law in the individual cases. In addition, I will rule upon certain evidential questions which were reserved at trial for a decision at this time.

D'ANGELO v. UNITED STATES

The D'Angelo suit comprises two claims. The first claim is denominated a wrongful death action in which Edeltraud B. D'Angelo, in her own behalf as the surviving spouse of John P. D'Angelo and to the use of their eight children, seeks to recover approximately $600,000 for the loss sustained by them as a result of his death. The second claim is denominated a survival action and is brought by Mrs. D'Angelo as the Executrix of the Estate of John P. D'Angelo. In the survival action, the plaintiff seeks to recover approximately $100,000 in damages for the decedent's pain and suffering, and $1,773 for his funeral expenses.

Evidential Rulings

Before discussing my findings of fact and conclusions of law, I will address several evidential questions which I reserved at trial for rulings at this time.

The defendant was granted a continuing hearsay objection to Mrs. D'Angelo's testimony about her husband's specific expectations of promotion at Copter, Incorporated, the company that employed him, and his general attitude towards his job.

Mrs. D'Angelo testified that her husband expected a promotion when he completed his flight training and obtained a multi-engine fixed-wing license. This testimony was offered for two purposes. First, it was offered to show that D'Angelo liked his job and planned to remain at Copter, Inc. Offered for this purpose, Mrs. D'Angelo's testimony might be considered hearsay under Fed.R.Ev. 802 but would be admissible in so far as it tended to establish the decedent's state of mind towards his work at the time of his death. Fed.R.Ev. 803(3).

It is questionable, however, whether the decedent's attitude toward his work is relevant to any significant issue in this case. Rather, it seems that Mrs. D'Angelo's testimony on this point primarily was offered to prove that, in fact, such a promotion was planned for her husband at Copter, Inc. Whether D'Angelo would have been promoted is crucial to the plaintiff's potential recovery. When offered to establish the existence of a specific promotion possibility for D'Angelo, however, Mrs. D'Angelo's testimony about his expectations in that regard is inadmissible as hearsay under Fed. R.Ev. 802, not within any exception outlined in Fed.R.Ev. 803.

Mrs. D'Angelo's testimony concerning her husband's expectations of a specific promotion at Copter, Inc., upon completion of his flight training, will not be considered by this Court in making its Findings of Fact.

Plaintiff objected, on the grounds of relevance, to the Government's cross-examination of Mrs. D'Angelo about her receipt of proceeds from life insurance policies whose premiums were paid by Copter, Inc.

Maryland law recognizes that benefits from a "collateral source" should not be considered in fixing damages in a tort action. Jennings v. United States, 291 F.2d 880, 887-88 (4th Cir. 1961); Cincotta v. United States, 362 F.Supp. 386, 409 (D.Md. 1973); Plank v. Summers, 203 Md. 552, 102 A.2d 262 (Ct.App.1954). It is clear that insurance proceeds and other payments received from sources wholly unconnected with the defendant tortfeasor cannot be considered in reduction or mitigation of damages. Cincotta v. United States, supra at 409.

Since the Government did not pay the premiums on the life insurance policies from which Mrs. D'Angelo received death benefits, it cannot argue that those benefits should be applied to reduce Mrs. D'Angelo's recovery. The Government was barred from inquiring, therefore, into Mrs. D'Angelo's receipt of insurance proceeds upon the death of her husband.

In determining the proper amount of monetary damages recoverable by Mrs. D'Angelo, this Court will not take into account her testimony concerning her receipt of life insurance proceeds upon the death of John P. D'Angelo.

The defendant objected, on the grounds of hearsay, to the testimony of Stuart Atkins, President of Copter, Inc., concerning statements made by the decedent about his promotion expectations.

No such testimony was adduced through Mr. Atkins. It is unnecessary, therefore, to rule upon this objection.

Defendant moved to strike Atkins' testimony regarding the amount paid by Copter, Inc., for fringe benefits for D'Angelo. The basis for this objection was stated to be the Best Evidence Rule, in that written records of Copter must have been available on this point and were not produced.

The "best evidence" rule, embodied in Fed.R.Ev. 1002, comes into play only when the terms of a writing are being established and an attempt is made to offer secondary evidence, i. e., a copy, to prove the contents of the original writing. The rule is not applicable when a witness testifies from personal knowledge of the matter, even though the same information is contained in a writing.

As an officer of Copter, Incorporated, Mr. Atkins attended directors meetings and participated in the preparation of the company's annual budget. He testified from personal knowledge that for the last several years preceding D'Angelo's death, the cost of employee benefits, specifically medical benefits, ranged between five and ten percent of the employee's base salary.

Since Mr. Atkins testified from personal knowledge and did not purport to testify as to the contents of any document, defendant's Best Evidence objection is misdirected, even though the corporate books of Copter, Inc., would establish the same facts as he testified to. Mobilift Equipment of Florida, Inc. v. Bryan, 415 F.2d 841, 844 (5th Cir. 1969).

Defendant's motion to strike the testimony of Stuart Atkins as it related to the amounts paid by Copter, Inc., for fringe benefits for John P. D'Angelo, will be denied.

Defendant also moved to strike the testimony of plaintiff's expert economist, Dr. William Latham, insofar as his opinion was based upon evidence not of record.

Although defense counsel argued that a "good deal" of the evidence upon which Dr. Latham based his projections had not been introduced at trial, I find that this objection is unfounded. Dr. Latham computed the present value of the pecuniary losses suffered by the D'Angelo plaintiffs as a result of the death of John P. D'Angelo. In formulating his computations, Dr. Latham considered the following factors: D'Angelo's income, medical benefits, pension and household services, and personal maintenance ratio; various "discount" factors; and an apportionment of the projected losses among Mrs. D'Angelo and her children. Dr. Latham also took into account the respective life expectancies of Mr. and Mrs. D'Angelo, and Mr. D'Angelo's work-life expectancy. There was testimony or documentary evidence on each of these points sufficient to permit Dr. Latham to state his expert opinion as to the present discounted value of the plaintiffs' pecuniary losses.

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