Hingson v. Pacific Southwest Airlines

• Decision Date: 02 October 1984
• Docket Number: No. 83-5925,83-5925
• Parties: 16 Fed. R. Evid. Serv. 726 Michael HINGSON, Plaintiff-Appellant, v. PACIFIC SOUTHWEST AIRLINES, a California corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1408

743 F.2d 1408

16 Fed. R. Evid. Serv. 726

Michael HINGSON, Plaintiff-Appellant, v. PACIFIC SOUTHWEST AIRLINES, a California corporation,

Defendant-Appellee.

No. 83-5925.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1984.

Decided Oct. 2, 1984.

Marc Maurer, The Maurer Law Firm, P.A., Baltimore, Md., for plaintiff-appellant.

Drew Pomerance, Kern, Wooley & Maloney, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, SNEED, and ALARCON, Circuit Judges.

SNEED, Circuit Judge:

Michael Hingson, a blind person, in this appeal challenges certain evidentiary rulings in the course of a trial of a claim under 49 U.S.C. Sec. 1374(b) and directed verdicts against him in several other causes of action brought against Pacific Southwest Airlines (PSA). These claims arose from the airline's insistence that Hingson sit in a bulkhead seat, i.e., the front row of the passenger section of an aircraft. We affirm the entry of directed verdicts against Hingson. The district court erred, however, in the challenged evidentiary rulings. Because of this error, we reverse and remand this case for a new trial on Hingson's claims under 49 U.S.C. Sec. 1374(b).

I. FACTS AND PROCEEDINGS BELOW

Michael Hingson is blind and travels with a guide dog. On September 18, 1980, a PSA employee told Hingson he could not board PSA's 9:15 a.m. flight from Los Angeles to San Francisco because PSA policy required blind passengers to occupy bulkhead seats and these seats were full. Hingson then purchased a ticket for and boarded PSA's 10:15 a.m. flight. Crew members asked him to sit in a bulkhead seat. Hingson insisted that PSA policy did not require him to sit in the front row. The pilot, Captain Claessens, told Hingson to take a bulkhead seat or to leave the aircraft. After Hingson refused to leave, PSA's Customer Service Manager, Darrell Everage, summoned Los Angeles police officers, who escorted Hingson off the aircraft.

Hingson thereafter filed suit in federal court alleging that PSA's actions constituted unlawful discrimination. His complaint listed fourteen causes of action under federal and state statutes and state common law. The case proceeded to trial before a jury on April 26, 1983. After the close of plaintiff's evidence, the district court granted PSA's motion for a directed verdict on all of the causes of action except Hingson's claims under section 404(b) of the Federal Aviation Act, 49 U.S.C. Sec. 1374(b). On May 3, 1983, the jury returned a verdict for PSA. Hingson appeals pursuant to 28 U.S.C. Sec. 1291.

II. DISCUSSION

We shall first consider whether the trial court erred in its challenged evidentiary rulings and thereafter determine whether the directed verdicts on various causes of action asserted by Hingson under state and federal law were proper.

A. The District Court's Evidentiary Rulings

In order to analyze the parties' arguments on the evidentiary issues, it is necessary to examine the features of a cause of action under section 404(b) of the Federal Aviation Act. That section provides in pertinent part:

No air carrier or foreign air carrier shall ... subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

49 U.S.C. Sec. 1374(b). ¹

Section 404(b) creates a private cause of action for passengers who suffer The contested evidentiary rulings arose from Hingson's efforts to show that PSA violated section 404(b) by insisting that Hingson take a bulkhead seat. The district court excluded the testimony of Norman Waters, PSA's Director of Planning and Control for Flight Operations, and limited the introduction of PSA policy manuals. Hingson contends these actions constitute reversible error. We agree with respect to the testimony of Waters.

                unjust discrimination or unreasonable prejudice.   See Archibald v. Pan American World Airways, 460 F.2d 14, 16 (9th Cir.1972);  Fitzgerald v. Pan American World Airways, 229 F.2d 499 (2d Cir.1956).  Handicapped passengers who are injured by unreasonable discrimination or prejudice on the part of air carriers may recover compensatory damages under section 404(b).  Moreover, punitive damages are recoverable if the defendant has acted "wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations."   See Archibald, 460 F.2d at 16 (quoting Wills v. Trans World Airlines, 200 F.Supp. 360, 367-68 (S.D.Cal.1961))
                

Waters' testimony was offered to establish that PSA's official policy, as stated in the policy manuals and in documents filed with the Federal Aviation Administration, was that blind persons were not restricted to the bulkhead seats. The offer of proof indicates that Waters would have testified that PSA policies were not followed in this case, and that considerations of convenience and safety did not require that Hingson occupy a bulkhead seat. The district court refused to admit Waters' testimony on the grounds that Waters was not an officer or a director, and therefore his statements could not bind PSA. Hingson then sought to have Waters testify as an expert witness. The court refused on the grounds that Hingson wanted Waters to represent PSA in his testimony. The district court also initially refused to admit the PSA policy manuals, which state that blind passengers should be allowed to sit anywhere except by emergency exits. After Hingson concluded his presentation of evidence, the court admitted the relevant portions of the Station Operations Manual and the Flight Operations Manual. ²

The district court refused to allow Waters to testify as an expert for Hingson because Waters worked for PSA. ³ The Federal Rules of Evidence clearly indicate the desirability of testimony by a qualified expert if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. If the testimony is otherwise admissible under Rule 702, the fact that Waters worked for PSA does not preclude his appearance as an expert witness for Hingson. Cf. Dunn v. Sears, Roebuck & Co., 639 F.2d 1171, 1174, modified on other grounds, 645 F.2d 511 (5th Cir.1981) (products liability defendant may offer employee as expert witness). The district court could use an appropriate instruction to prevent the jury from drawing any improper inferences from PSA's employment of Waters. ⁴

The district court's exclusion of Waters' testimony, however, cannot constitute reversible error unless Waters satisfied the requirements of Rule 702 for the admissibility of expert testimony. Consequently, we must be satisfied that his testimony would have assisted the trier of fact to understand the evidence or to determine a fact in issue. PSA argues that Waters' testimony was needlessly cumulative and thus properly excluded under Fed.R.Evid. 403. Admission of the manuals made his testimony unnecessary. This argument has merit only to the extent Waters would have testified as to the content of the manuals. However, his testimony concerning the preparation of the manuals and the considerations that underlie the provisions related to seating of blind passengers clearly would have assisted the jury in understanding the evidence.

The testimony of Claessens strengthens our conviction that the offered testimony by Waters would have assisted the jury. The parties agree that the basic issue in this case is whether PSA acted unreasonably in demanding that Hingson take a bulkhead seat. Captain Claessens testified at length that safety concerns justified his actions. He also testified that under federal regulations, the pilot in command has the ultimate responsibility to make decisions for the safe operation of the aircraft. ⁵ When asked how he regarded the policy manuals, he stated that the provisions were intended only as a guide. Waters, according to the offer of proof, would have testified that the safety concerns expressed by Captain Claessens were already reflected in the policy manuals and that such concerns did not require that Hingson sit in a bulkhead seat. We doubt not that the testimony of Waters could have assisted the jury in determining if PSA's actions were unreasonable. ⁶

The offer of proof also indicates that Waters was qualified to testify as an expert witness. Rule 702 states that an expert witness is qualified by his "knowledge, skill, experience, training, or education." Waters worked for PSA for eight years and served as the airline's Director for Planning and Control for Flight Operations. In this capacity, he studied the problem of accommodating handicapped passengers and drafted the PSA policies stating that blind passengers should not be restricted to the bulkhead seats. It is difficult to imagine a person better qualified to comment on the preparation of the PSA policy manuals or to offer an opinion whether the circumstances justified a departure from the airline's own policies.

Because the exclusion of the testimony of Waters was manifestly erroneous and affected a substantial right of Hingson, see Fed.R.Evid. 103(a), we reverse the district court on this issue and remand the case for a new trial on Hingson's claims under section 404(b).

B. The Directed Verdicts on the Section 404(a) Claims

The situation is different with respect to Section 404(a) of the Federal Aviation Act, however. It provides:

It shall be the duty of every air carrier to provide and furnish interstate and overseas air transportation, as authorized 49 U.S.C. Sec. 1374(a). ⁷

by its certificate, upon reasonable request therefor and ... to provide safe and adequate service, equipment, and facilities in connection with such transportation ....

The district court directed a verdict for PSA on Hingson's claims under section 404(a) on the grounds that there was no...