Shatkin v. McDonnell Douglas Corp., s. 288

• Decision Date: 26 January 1984
• Docket Number: 396 and 520,Nos. 288,D,s. 288
• Citation: 727 F.2d 202
• Parties: 14 Fed. R. Evid. Serv. 1522 Jane S. SHATKIN, as Executrix of the Estate of Lloyd J. Shatkin, Deceased, Plaintiff-Appellee-Cross-Appellant, v. McDONNELL DOUGLAS CORPORATION and American Airlines, Inc., Defendants-Appellants-Cross-Appellees. ockets 83-7674, 83-7680 and 83-7698.
• Court: U.S. Court of Appeals — Second Circuit

Page 202

727 F.2d 202

14 Fed. R. Evid. Serv. 1522

Jane S. SHATKIN, as Executrix of the Estate of Lloyd J.

Shatkin, Deceased, Plaintiff-Appellee-Cross-Appellant, v. McDONNELL DOUGLAS CORPORATION and American Airlines, Inc.,

Defendants-Appellants-Cross-Appellees.

Nos. 288, 396 and 520, Dockets 83-7674, 83-7680 and 83-7698.

United States Court of Appeals, Second Circuit.

Argued Nov. 23, 1983.

Decided Jan. 26, 1984.

Randal R. Craft, Jr., New York City (Peter Hoenig, Lawrence M. Harnett, Haight, Gardner, Poor & Havens, New York City, of

counsel), for defendant-appellant American Airlines, Inc

Mendes & Mount, New York City (Garrett J. Fitzpatrick, Anthony G. Bouscaren, New York City, of counsel), for defendant-appellant McDonnell Douglas Corp.

David S. Gould, New York City (F. Lee Bailey and Aaron J. Broder, New York City, of counsel), for plaintiff-appellee Jane S. Shatkin.

Before FRIENDLY, MANSFIELD and KEARSE, Circuit Judges.

MANSFIELD, Circuit Judge:

Defendants American Airlines, Inc. (American) and McDonnell Douglas Corporation (McDonnell Douglas) appeal from that portion of a judgment entered in the Southern District of New York pursuant to the order of Judge Milton Pollack after a jury rendered a special verdict awarding plaintiff Jane Shatkin $87,500 for conscious pain and suffering experienced by her son Lloyd Shatkin immediately prior to the crash of an American Airlines jet on which he was a passenger. Plaintiff cross-appeals from that portion of the special verdict that awarded her $15,000 for loss of services and $15,000 for loss of financial support. We reverse the award for pre-impact pain and suffering and remand with instructions to enter judgment for the defendants notwithstanding the verdict. We affirm the awards for loss of services and financial support.

This case stems from the highly publicized crash of a DC-10 plane on an American Airlines flight near O'Hare International Airport on May 25, 1979, after it lost an engine during take-off. All of those aboard the plane, including Lloyd Shatkin and his wife, Ina, were killed immediately upon impact. Mr. and Mrs. Shatkin left mutual wills bequeathing their property in the event of their simultaneous deaths to their respective parents. Lloyd's will left three-quarters of his estate to his mother, Jane S. Shatkin, and one quarter to his wife's parents. His mother was appointed executrix of his estate and as such brought this action against American and the jet's manufacturer, McDonnell Douglas, to recover damages for wrongful death and pre-impact pain and suffering. On June 29, 1979, the Judicial Panel on Multidistrict Litigation ordered the action transferred to the Northern District of Illinois pursuant to 28 U.S.C. Sec. 1407 for consolidated pre-trial proceedings. After conducting extensive discovery the parties entered a "no contest" stipulation as to the defendants' liability on September 10, 1982. On November 18, 1982, the action was remanded to the Southern District of New York for trial of the damages claim.

Following further discovery trial was held from June 9 through June 13, 1983. The evidence was undisputed that the plane was a wide-bodied three-engine DC-10 manufactured by defendant McDonnell Douglas Corporation and operated by defendant American Airlines on its Flight 191, which took off on May 25, 1979, from O'Hare International Airport, Chicago, Illinois. Upon take-off the plane lost an engine on its left side. Mr. Shatkin, a passenger, was seated on the right side of the plane in seat No. 24H, from which a passenger would not normally be able to note the absence of an engine on the left side. The total flight lasted 31 seconds from take-off until the crash.

Portions of a report of the National Transportation Safety Board (NTSB), which is based on data from the plane's flight recorder, reveal that the plane was able to take off smoothly despite the loss of the engine, climbing to 325 feet. The flight lifted off in a slight left wing-down attitude. This condition was corrected by application of a right wing-down aileron and right rudder, stabilizing the plane at a wings-level stance, and the plane continued to climb. At about 11 seconds before impact the plane began to roll slightly to the left. It was not until 3 seconds before impact that the plane reached a 90-degree position. It then crashed. Barbara Mueller, who witnessed the movements of the plane from a distance of 2 1/2 miles from the airport and 1 mile from the scene of the crash, testified that she saw the plane tilt In view of the "no contest" stipulation with respect to liability the trial was concerned almost entirely with proof as to damages. Aside from evidence as to the plane's pre-impact movements no proof of conscious pain and suffering on the part of Lloyd Shatkin was introduced. However, plaintiff did offer some evidence in support of her claim for loss of services and financial support.

                from side to side and descend nose-down just before the crash.  However, she did not see the take-off and had no recollection of the timing of the movements she witnessed other than to say, "It might have been seconds, minutes, I cannot really tell you."    Thus there is not necessarily any inconsistency between her testimony and the flight recorder.  Both indicate that the plane was not in obvious difficulty until a very short time before impact
                

At the time of the crash Lloyd Shatkin was 29 years old and employed as a buyer for Mayfair Incorporated, a retail home furnishing firm in Albany, New York. His 1979 salary was $18,000 a year. His employer testified that his 1980 salary probably would have been $28,000 to $30,000, including bonus, but that it was impossible to estimate his future income from the company.

Plaintiff Jane S. Shatkin, a nurse, was a 66-year old widow (her husband died in 1969) with a life expectancy of 14.8 years at the time of her son's death. She had received $80,000 in life insurance payments on her husband's death and returned to work. She earned approximately $12,000 to $14,000 in 1978 and $12,000 in 1979. Prior to his death her son Lloyd had in 1969 assigned to her monthly payments of $96.01 due under an annuity inherited from his father, which expired in 1979. The son was apparently devoted to his mother, making small gifts to her from time to time, advising that she could come to live with him rather than go into a home and doing repair jobs for her around her house.

After a voir dire Judge Pollack filed an opinion (published at 565 F.Supp. 93) refusing to admit the testimony of Dr. Edmund Mantell, an economics expert called by plaintiff to testify as to his projections of Lloyd Shatkin's future gifts to Mrs. Shatkin based on assumptions as to economic trends, future tax rates, Lloyd's income and percentages of disposable income that he assumed Lloyd would probably have assigned to his mother. Objections to the evidence were sustained on the ground that "Dr. Mantell's assumptions and techniques of calculation involve egregious and gross error at almost every step," 565 F.Supp. at 94, and that "[t]hese assumptions are no more than conjecture and wild speculation." Id. at 95. Judge Pollack concluded that "[g]iven all the facts and circumstances of this case, the testimony would seriously prejudice, mislead and confuse the jury...." Id. at 96.

The jury returned special verdicts awarding $87,500 for Lloyd Shatkin's conscious pain and suffering prior to impact, $15,000 for the loss of household services that Lloyd would otherwise have performed for his mother, and $15,000 for support Lloyd would have given his mother over the course of their respective life expectancies. On June 20, American moved pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for judgment notwithstanding the verdict on the claim for pre-impact pain and suffering; in the alternative, American sought an order pursuant to Rule 59 setting aside the verdict and granting a new trial on that issue. The court denied the motion on July 5 and entered judgment on July 6, 1983, from which the defendants appeal.

On August 6, 1983, plaintiff moved for leave to file a motion for a new trial on the issues of loss of support and services, alleging that the jury's awards were inadequate. On August 12, 1983, the district court denied the motion both on the merits and because it was untimely, from which plaintiff appeals.

DISCUSSION

Plaintiff's Claim for Pre-Impact Pain and Suffering

Defendants claim that the district court erred in not dismissing plaintiff's claim based on the deceased's alleged pre-impact pain and suffering. Relying principally on Clancy v. Port of New York Authority, 55 A.D.2d 587, 389 N.Y.S.2d 615 (1st Dept.1976), they contend that under New York law no recovery may be had on such a claim. ¹ Secondly they argue that, even if damages could be recovered for pre-impact pain and suffering, the claim here was wholly unsupported by the evidence. Since we agree with the latter contention it is unnecessary to rule on the former.

Assuming that pre-impact pain and suffering is compensable, it must first be shown by a preponderance of the evidence that the decedent had some knowledge or other basis for anticipating the impending disaster; otherwise no basis would exist for a finding of fright or mental anguish. In granting summary judgment dismissing a similar claim, the court in Anderson v. Rowe, 73 A.D.2d 1030, 425 N.Y.S.2d 180 (4th Dept.1980), recognized this elementary proposition:

"The plaintiff was not able to present any evidence that they suffered any conscious pain. Nor was the plaintiff able to show evidence from which one might imply that the decedents were aware of the danger and suffered from pre-impact terror." (73 A.D.2d at 1030, 425 N.Y.S.2d at 181).

Similarly, in Feldman v. Allegheny Airlines, Inc., 382 F.Supp. 1271 (D.Conn.1974), aff'd in relevant part, 524 F.2d 384 (2d Cir.1975), even though there was evidence suggesting that some...