IN RE KOREAN AIR LINES DISASTER OF SEPT. 1, 1983

• Decision Date: 07 January 1993
• Docket Number: 84-74076-DT,MDL No. 565. Civ. A. No. 84-79292-BC,83-75076-DT,83-73846-DT,84-74238-DT and 83-73777-DT.
• Citation: 814 F. Supp. 592
• Parties: In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983. Richard A. BOWDEN, Dorothy Jones, Willie N. James, Daisy E. Bickel, Charles E. Fonville, and Estate of Margaret Zarif (companion cases), Plaintiffs, v. KOREAN AIR LINES CO., LTD., Defendant.
• Court: U.S. District Court — Western District of Michigan

814 F. Supp. 592

In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983 Richard A. BOWDEN, Dorothy Jones, Willie N. James, Daisy E. Bickel, Charles E. Fonville, and Estate of Margaret Zarif (companion cases), Plaintiffs, v. KOREAN AIR LINES CO., LTD., Defendant.

MDL No. 565. Civ. A. Nos. 84-79292-BC, 83-73846-DT, 83-75076-DT, 84-74076-DT, 84-74238-DT and 83-73777-DT.

United States District Court, E.D. Michigan, S.D.

January 7, 1993.

COPYRIGHT MATERIAL OMITTED

David William Potts, Carson Fischer and Potts, Birmingham, MI, for Bowden.

Michael S. Mazur, Chambers, Steiner, Mazur, Ornstein & Amlin, Detroit, MI, for James.

Kevin Mosley, Bailey & Broder, New York City, for Bickel.

Gerald E. Thurswell, Thurswell, Chayet & Weiner, Southfield, MI, for Zarif.

L.S. Charfoos, Charfoos and Christensen, Detroit, MI, for Jones.

Timothy J. Currier, Beier Howlett, Bloomfield Hills, MI, for Bickel.

Charles E. Fonville, pro se.

Robert R. Florka, Florka and Jukowski, Bloomfield Hills, MI, George N. Tompkins, Jr., Condon & Forsyth, New York City, for defendant.

MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

This litigation arises from the crash of Korean Air Lines Flight KE 007, bound from New York to Seoul, South Korea, in the sea of Japan on September 1, 1983, after it had been attacked by Soviet aircraft. Plaintiffs here are the personal representatives of the six Michigan passengers who, among the total of 269 persons aboard, lost their lives. Plaintiffs filed these wrongful death actions in the Eastern District of Michigan, with jury demands, and the cases were transferred by the Panel on Multidistrict Litigation to the United States District Court for the District of Columbia, Chief Judge Aubrey Robinson, for consolidated trial with all others resulting from the crash, on the issue of liability. In re Korean Air Lines Disaster of September 1, 1983, MDL Docket No. 565., Nos. 83-2793, et al.

Chief Judge Robinson denied defendant's pre-trial motion to strike plaintiff's jury demands. In re Korean Air Lines Disaster of September 1, 1983, 704 F.Supp. 1135 (D.D.C. 1988), modified, 932 F.2d 1475 (D.C.Cir.1991) ("Korean I"). He tried the consolidated case to a jury, which rendered a verdict for plaintiffs on liability and awarded $50 million in punitive damages for "willful misconduct" as described in the Warsaw Convention, further discussed below.¹ The jury verdict was appealed by defendant on the questions of sufficiency of the evidence for a finding of willful misconduct and the availability of punitive damages. The question of whether the case should have been submitted to a jury at all was not appealed. The Court of Appeals for the District of Columbia vacated the jury award of punitive damages, holding that such damages are not available under the Warsaw Convention, which it found to be the controlling, if not exclusive, law applicable. In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C.Cir.1991) ("Korean II"). It held, however, that the evidence was sufficient to support a finding of willful misconduct. Petitions for writs of certiorari by both sides were denied by the United States Supreme Court on December 2, 1991. Dooley v. Korean Air Lines Co., ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). As the issues of liability applicable to all cases have been determined, including that of defendant's willful misconduct, which removes the usual $75,000 limit of damages available to victims of international airline crashes pursuant to Article 25 of the Warsaw Convention, these cases have now been returned by the Panel on Multidistrict Litigation to their original courts for trial on the question of damages.

Defendant has filed a number of related pretrial motions in this court as to the law applicable to the trial which now must be conducted. They include:

1. A motion to strike plaintiffs' jury demand on the issue of damages.

2. A motion for determination that the governing law, the Death on the High Seas Act, 46 U.S.C. § 761 et seq. ("DOSHA"), requires that damage awards be limited to the pecuniary losses of the survivors.

3. A motion for partial summary judgment against the claim of passenger Chambers' survivors, who have acknowledged they have no claims for pecuniary loss.

4. A motion for partial summary judgment on plaintiffs' claims of damages for the pre-death pain and suffering of the decedent passengers.

5. A motion to preclude the testimony of two designated experts as to the pre-death suffering of the decedents.

6. A motion to preclude any reference at trial to the prior jury's finding of willfulness.

Although this Circuit has not yet considered many of the vexing questions ably raised here, the thoughtful opinions of the Judges of the Court of Appeals for the District of Columbia in Korean I, and of the Second Circuit Court of Appeals in In re Air Disaster at Lockerbie, 928 F.2d 1267 (2d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991), decided a few months prior, have provided substantial guidance to this court. For the reasons outlined below, each of these motions must be denied, except for the last.

I. MOTION TO STRIKE PLAINTIFFS' JURY DEMAND AS TO DETERMINATION OF DAMAGES.

The court must note at the outset that plaintiffs filed demands for jury trial of these cases with their complaints. After the cases were bifurcated, consolidated, and transferred to the D.C. District by the MDL Panel, Chief Judge Robinson denied defendant's motion to strike the jury demands in the cases, tried the cases to a jury, and defendant did not appeal that decision. See Judge Robinson's decision in Korean I. The present motion, although characterized as a motion to strike the "demand as to determination of damages", is but a second motion to strike the demands of the original complaints. The forthcoming trial as to damages is not a new action. Therefore, defendant has waived this objection if in fact it is a valid one. The right to jury has been granted and that decision was not appealed.

Also, the right to trial by jury has become the law of this case, by virtue of Judge Robinson's decisions in Korean I, as well as in Korean II, cited in In re Korean Air Lines Disaster of September 1, 1983, 807 F.Supp. 1073, 1079 (S.D.N.Y.1992) ("Korean III"). His decision has subsequently been denoted the law of the case by other transferor district courts in Yun v. Korean Airlines Co., 798 F.Supp. 755 (E.D.N.Y.1992), Park v. Korean Air Lines, No. 83 Civ 7900, 1992 WL 331092 (S.D.N.Y.1992), and in Korean III, as well. In affirming the jury verdict as to willful misconduct, moreover, the Court of Appeals for the District of Columbia implicitly affirmed Judge Robinson's submission of the case to a jury, although the question had not been raised by defendant. That court wrote, in Korean II, 932 F.2d at 1481:

When "questions of willful misconduct depend upon inferences to be drawn from essentially circumstantial evidence ... one can hardly imagine a clearer case in which such questions should have been left to the jury." Berner v. British Commonwealth Pacific Airlines, 346 F.2d 532, 538 (2d Cir.1965) (reversing JNOV for plaintiffs in an air crash case), cert. denied 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966).

Throughout its careful analysis of the district court's evidentiary rulings, the potential unfair prejudice of presentation of certain matters to the jury, the jury instructions, and in its conclusions that there was sufficient evidence from which a reasonable jury, contrary to defendant's arguments, could find that willful misconduct had occurred, the D.C.Circuit never raised the hint of a doubt that the case was one triable to a jury, as a matter of law. It's affirmation of the jury finding and of the district court's refusal to grant JNOV constitute an affirmation that the governing law had indeed entitled plaintiffs to trial by jury in the first place.

The governing law must nevertheless be examined, and such an examination at the outset is necessary to a decision of any of these motions. In that regard this court is persuaded that the questions raised here are governed by the terms of the Warsaw Convention, supra. The Convention is a multilateral treaty which the Congress of the United States ratified in 1934, and which constitutes the supreme law of the land in the matters upon which it touches. To the extent its terms, policies, and purposes conflict or would be defeated by the Death on the High Seas Act of 1920, it supersedes that Act. The Warsaw Convention established the liability of international air carriers for harm to passengers and goods, fixed limitations on that liability and attempted to provide as much uniformity and predictability in procedures and substantive law to which both carriers and their passengers must submit in case of accident, as possible.

The Court of Appeals for the District of Columbia wrote that:

The central purpose of the Convention is to limit the liability of air carriers. The contracting states in 1929 believed that limitations on liability would promote the development of the fledgling commercial air industry by allowing the airlines to predict their exposure to monetary damages and thereby obtain needed capital and adequate insurance coverage. See Eastern Airlines v. Floyd, ___ U.S. ___, ___, 111 S.Ct. 1489, 1499-1500, 113 L.Ed.2d 569 (1991) ("Floyd II"); Lockerbie, 928 F.2d at 1270-71....

Korean II, 932 F.2d at 1484.

Article 17 of the Convention provides that:

"The carrier shall be liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger...."

Article 24 allows the contracting states to determine the standing and "respective rights" of claimants under Article 17, "subject to the limitations of the Convention"; and Article 25 provides that the limitation of a carrier's liability is lost when the damage sustained by a claimant is due...