Kennett v. Delta Air Lines, Inc.
| Decision Date | 05 April 1977 |
| Docket Number | No. 76-1482,76-1482 |
| Citation | 560 F.2d 456 |
| Parties | Bayard W. KENNETT, Administrator of the Estate of Linnell W. Kennett, Plaintiff, Appellee, v. DELTA AIR LINES, INC., Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Theodore Wadleigh, Manchester, N. H., with whom Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., was on brief, for Delta Air Lines, Inc.
Jack B. Middleton, Manchester, N. H., with whom Arthur G. Greene and McLane, Graf, Greene, Raulerson & Middleton, Professional Assn., Manchester, N. H., were on brief for Bayard W. Kennett, Admr. of the Estate of Linnell W. Kennett.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MILLER, * Judge.
Delta Air Lines, Inc. ("Delta") appeals from a judgment entered on a jury verdict in favor of plaintiff-appellee in the sum of $415,758. We affirm.
The action was for wrongful death of Linnell Kennett which resulted from a crash of Delta Air Lines Flight # 723 at Logan International Airport on July 31, 1973. Delta admitted liability in the District Court for the District of Massachusetts, and the case was remanded to the District Court for the District of New Hampshire for trial on the issue of damages pursuant to 28 U.S.C. § 1407.
Delta raises five issues, which will be disposed of under appropriate
headings. WHETHER UPON ALL OF THE EVIDENCE PRESENTED THE
JURY VERDICT WAS EXCESSIVE.
Upon return of the jury's verdict, Delta orally moved "for remittitur that the verdict was excessive and oppressive." This was denied. Subsequently, Delta filed a written motion that the verdict be set aside and a new trial ordered "on the grounds that the verdict was oppressive, excessive and contrary to the law and evidence introduced during the course of trial." This, too, was denied.
The rule on review involving the question of excessiveness of a verdict was stated by this court in Boston & Maine Railroad v. Talbert, 360 F.2d 286, 291 (1st Cir. 1966):
It is well settled that the question of excessiveness of a verdict is primarily for the trial court and its determination thereof will not be reversed on appeal except for a manifest abuse of discretion. . . . The reason for this rule is that the trial court has had the benefit of hearing the testimony, of observing the demeanor of the witnesses and also knows the community and its standards. On appeal, therefore, we are reluctant to overturn jury verdicts on the ground of excessiveness. . . . To constitute See LaForest v. Autoridad de Las Fuentes Fluviales, 536 F.2d 443, 447 (1st Cir. 1976).
such an abuse of discretion the award must be shocking. . . .
The New Hampshire wrongful death statute (N.H.Rev.Stat.Ann. § 556:12) provides:
556:12 Damages for Wrongful Death, Elements. If the administrator of the deceased party is plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by the deceased in consequence of the injury, the reasonable expenses occasioned to his estate by the injury, the probable duration of his life but for the injury, and his capacity to earn money during his probable working life, may be considered as elements of damage in connection with other elements allowed by law, in the same manner as if the deceased had survived.
In its instructions to the jury, the trial court carefully directed that no punitive damages were to be awarded; also that no damages were to be awarded for pain and suffering of the deceased, or for "the grief and the sorrow and the emotional anguish suffered by Linnell's husband and parents because of her death." 1 The court stated that the measure of the loss to the deceased's estate was:
the amount of money that you find that she had the capacity to earn, capacity to earn, during her working life, less her necessary living expenses. The key words are full, fair and adequate capacity to earn minus necessary living expenses.
At the time of her death, the deceased was twenty-four years of age, married, in good health, and active in social and community affairs. She had no children. It was stipulated that the life expectancy of a woman of her age would have been 53.5 years. Plaintiff-appellee presented the expert testimony of an economist, who testified on the basis of two reports he had prepared: one based on the deceased's potential earnings plus the value of her homemaking services showing a net loss to the estate (after deducting necessary living expenses) of $542,600; the other based on her actual part-time earnings history plus the value of her homemaking services showing a net loss to the estate (after deducting necessary living expenses) of $427,000. The jury's verdict of $415,758 is obviously very close to the second report, and it is that report on which we will focus our attention vis-a-vis the report of Delta's economist showing a net loss to the estate of only $99,085.55, based on the deceased's potential earnings plus the value of her homemaking services minus necessary living expenses. Both economists assumed a forty-year working life expectancy in making their calculations.
One major difference between appellee's second report and Delta's report is that appellee's economist calculated the value of the deceased's homemaking services on the basis of 54.6 hours per week in addition to part-time employment of 15 hours per week. Delta's economist assumed that the deceased would normally have been employed full time and that, when so employed, "imputed values for any part time housekeeping would have been offset by payments by her to others for the remaining part time housework"; also, he calculated the imputed value for full time housekeeping only for the time she would have been "statistically unemployed" (4.9% of the time, representing the national average unemployment rate for women 20 years of age and over) and on a 42 hour work week basis. Both economists used the same present wage rate for employment of $112.50 per week and the same present imputed wage rate for homemaking services.
Another major difference between appellee's second report and Delta's report is that appellee's economist used a 5.6% annual There is a $328,000 4 spread between appellee's computed loss to the estate and Delta's computed loss. Of that amount, $243,000 arises from the difference between the parties' calculations of the total value (discounted) of the deceased's capacity to earn money, thus:
rate of increase (compounded) in the value of the deceased's actual part-time earnings 2 and the value of her homemaking services over 3 her working lifetime, but applied a discount rate of only 4.5% (not compounded) in reducing the projected values to present values. Delta's economist used a 6.8% annual rate of increase and a discount rate of 6%.
Most of that difference is attributable to the two major differences in the reports described above.
The remaining amount of the spread ($85,000) is attributable to the third major difference in the reports, necessary living expenses (discounted), thus:
Delta's economist assumed that 66% of both the deceased's earnings (discounted) from full time employment and the imputed value (discounted) for full time housekeeping (during the 4.9% of the time when she was "statistically unemployed") would be spent for "consumption of services and non-durable goods" and deducted this amount in calculating the net loss to the estate. It was his testimony that over 90 to 95% of the population spends two-thirds of its income on nondurable goods and services. On cross-examination he testified as follows:
XQ. And so . . . it doesn't matter whether you are earning $5,000.00 a year and have several children to take care of or whether you are earning $100,000.00 a year with nobody to take care of yourself, you are going to spend 66 and two-thirds percent of your income on non-durable goods?
A. That's right. The variation in those cases is within one or two percentage points.
During further cross-examination on the subject of necessary living expenses, he testified as follows:
XQ. You know, we could compute, couldn't we, you know, how much it would cost to buy clothing today to reasonably clothe somebody, how much it would cost to feed somebody on a weekly basis, and the other essential expenses of staying alive, but in a reasonable fashion, we could compute that, couldn't we?
A. Only by asking that person what you feel is essential for your lifestyle. I cannot project my lifestyle onto someone else.
XQ. So you are saying that there is no way to determine necessary except by a completely subjective approach, the individual has to determine what is necessary?
A. That is correct.
Appellee's economist calculated personal consumption expenses (necessary living expenses) at $1,240.12 per year for 1973-84, $2,125.92 per year from 1985-2004, and $2,391.66 from 2005-14, based on statistics from the U. S. Bureau of Labor Statistics, representing the annual consumption requirements for a median standard of living in the nonmetropolitan Northeast. In computing the lifetime value, he used a 5.6% annual rate of increase and a 4.5% discount rate. Although, as Delta points out, the basic figures were derived from the annual consumption requirements for a typical Both economists testified at length and were subjected to extensive cross- examination. The basis for their calculations and their assumptions were clearly explained. The jury made a choice between conflicting professional opinions and judgments, which are, by no means, unusual in the economics profession. There was ample evidence to support the jury's verdict. In view of the evidence, we do not regard the verdict as "shocking." Accordingly, we hold that there was no...
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