Affirmation of Pre-Death Pain and Suffering Damages under DOHSA: Bickel v. Korean Air Lines

Affirmation of Pre-Death Pain and Suffering Damages under DOHSA: Bickel v. Korean Air Lines

Introduction

BICKEL v. KOREAN AIR LINES COmpany, Ltd., 96 F.3d 151 (6th Cir. 1996), is a pivotal case that addresses the complex interplay between the Death on the High Seas Act (DOHSA) and the availability of non-pecuniary damages, specifically pre-death pain and suffering. This case involves multiple plaintiffs representing the estates of deceased passengers of Korean Air Lines, who sought compensation not only for pecuniary losses under DOHSA but also for non-pecuniary damages incurred by the decedents prior to their deaths. The key issue revolves around whether such non-pecuniary damages can be recovered through a maritime common law survival action alongside DOHSA's stipulations.

Summary of the Judgment

The United States Court of Appeals for the Sixth Circuit, in its amended opinion, partially reversed and partially affirmed the decisions of the United States District Court for the Eastern District of Michigan. Initially, the appellate court had reversed the awards for pre-death pain and suffering. However, upon the plaintiffs' motion for rehearing, the appellate court reconsidered and reinstated these awards. The majority held that plaintiffs could recover non-pecuniary damages under a maritime common law survival action even when DOHSA provides for pecuniary damages. The court emphasized procedural aspects, noting that the defendant, Korean Air Lines (KAL), did not raise objections regarding the propriety of these damages in their opening briefs, thereby waiving such arguments. The dissenting opinion, however, strongly disagreed, asserting that DOHSA exclusively governs the types of damages recoverable, thereby precluding non-pecuniary damages like pre-death pain and suffering.

Analysis

Precedents Cited

The judgment extensively references prior cases to establish the legal framework governing the availability of pre-death pain and suffering damages:

  • Sea-Land Servs. v. Gaudet, 414 U.S. 573 (1974) – Distinguished wrongful death actions from survival actions under maritime law.
  • AZZOPARDI v. OCEAN DRILLING EXPLORATION CO., 742 F.2d 890 (5th Cir. 1984) – Allowed recovery of non-pecuniary damages alongside pecuniary damages under DOHSA.
  • BARBE v. DRUMMOND, 507 F.2d 794 (1st Cir. 1974) – Similar allowance of non-pecuniary damages in maritime survival actions.
  • Zicherman v. Korean Air Lines, 416 U.S. 1107 (1974) – Addressed the scope of damages under DOHSA but did not explicitly rule on pre-death pain and suffering.
  • Forman v. Korean Air Lines, 84 F.3d 446 (D.C. Cir. 1996) – Refused to address late-raised arguments on non-pecuniary damages, reinforcing procedural requirements.

The majority relied on these precedents to argue that non-pecuniary damages have been consistently recognized in various circuits, thereby endorsing the possibility of such recoveries under a survival action in maritime law.

Legal Reasoning

The court’s reasoning can be dissected into several key components:

  • Procedural Default: The majority emphasized that KAL failed to raise the issue of the propriety of pre-death pain and suffering damages in their initial briefs, which under Federal Rule of Appellate Procedure 28(a), limits the appellate court's consideration to issues raised in the appellant's opening briefs.
  • Balancing Interests: In permitting videotaped expert testimony, the court balanced the need for efficient judicial proceedings against the potential prejudicial impact on KAL, ultimately finding no abuse of discretion.
  • Consistency with Other Circuits: By referencing decisions from the 1st and 5th Circuits, the court underscored a pattern of acceptance for non-pecuniary damages in similar contexts, thereby legitimizing their reinstatement.
  • Distinction from DOHSA’s Pecuniary Damages: The majority maintained that DOHSA's provision for pecuniary damages does not inherently exclude non-pecuniary damages under maritime common law, allowing for a more comprehensive recovery for plaintiffs.

Conversely, the dissent argued that DOHSA's exclusivity should preclude non-pecuniary damages, emphasizing the Supreme Court’s decisions that suggest DOHSA governs the scope of recoverable damages comprehensively.

Impact

This judgment has significant implications for future maritime litigation involving wrongful death:

  • Expanded Damages Recovery: By affirming the availability of pre-death pain and suffering damages under maritime survival actions, plaintiffs may pursue more comprehensive compensation for their losses.
  • Clarification of DOHSA's Scope: The decision delineates the boundaries between DOHSA's provisions and maritime common law, potentially prompting further case law to refine these distinctions.
  • Procedural Considerations: Emphasizes the importance of timely and comprehensive argumentation in appellate briefs, as omitted issues may be deemed waived.
  • Influence on Circuit Consistency: Encourages harmonization across circuits regarding the treatment of non-pecuniary damages in the context of maritime law.

However, the dissent highlights ongoing contention and suggests that higher courts, including the Supreme Court, may need to address these ambiguities to establish clearer guidelines.

Complex Concepts Simplified

Death on the High Seas Act (DOHSA)

DOHSA is a federal statute that allows the families of individuals who die in maritime incidents to seek compensation for economic losses such as funerary expenses, loss of financial support, and negligence resulting in death. It primarily covers pecuniary damages, which are quantifiable financial losses.

Pre-Death Pain and Suffering

This refers to non-pecuniary damages that compensate for the mental and physical anguish experienced by a person before their death. Unlike pecuniary damages, these are subjective and harder to quantify.

Maritime Common Law Survival Action

A survival action allows the estate or beneficiaries of a deceased person to sue for damages that the decedent could have pursued had they survived, including non-pecuniary losses like pain and suffering.

Federal Rule of Appellate Procedure 28(a)

This rule mandates that an appellant's brief must explicitly state the issues being appealed and provide arguments for each. Issues not raised in the appellant's opening briefs are generally not considered on appeal.

Remittitur

A legal remedy where a judge reduces an excessive jury award to a more reasonable amount without overturning the verdict.

Conclusion

Bickel v. Korean Air Lines stands as a consequential decision in maritime law, particularly concerning the scope of damages recoverable under DOHSA. By reinstating pre-death pain and suffering damages through maritime common law survival actions, the Sixth Circuit has broadened the avenues through which plaintiffs can seek comprehensive redress for wrongful deaths at sea. This case underscores the delicate balance courts must maintain between adhering to statutory confines and recognizing the nuanced realities of human suffering. The dissenting opinion further accentuates the legal community's divided stance on this issue, highlighting the potential for future judicial clarification. Overall, this judgment enriches the legal discourse surrounding wrongful death and damages, setting a precedent that may influence subsequent cases and legislative considerations.

Case Details

Year: 1996
Court: United States Court of Appeals, Sixth Circuit.

Judge(s)

Bailey BrownAlice Moore Batchelder

Attorney(S)

Gerald G. White, Timothy J. Currier, Robert G. Waddell, Beier Howlett, Bloomfield Hills, MI, Kevin L. Mosley, Aaron J. Broder (argued and briefed), Meryl I. Schwartz, F. Lee Bailey Assoc., New York City, for Plaintiff-Appellee Bickel in No. 93-2144. Robert R. Florka, Birmingham, MI, Andrew J. Harakas (argued and briefed), Jeanine C. Veracoechea, George N. Tompkins, Jr. (briefed), Tompkins, Harakas, Elsasser Tompkins, White Plains, NY, for Defendant-Appellant, Cross-Appellee Korean Air Lines Company, Ltd. Timothy J. Currier, Beier Howlett, Bloomfield Hills, MI, Kevin L. Mosley, Aaron J. Broder (argued and briefed), Meryl I. Schwartz, F. Lee Bailey Assoc., New York City, for Plaintiff-Appellee Bickel in No. 93-2259. David R. Parker (argued and briefed), Lawrence F. Charfoos, Charfoos Christensen, Detroit, MI, for Plaintiffs-Appellees Chambers and Jones in No. 93-2549. Angela J. Nicita (argued and briefed), Michael S. Mazur, Patricia A. Murray, Chambers, Steiner, Mazur, Ornstein Amlim, Detroit, MI, for Plaintiff-Appellee James in No. 94-1095. George M. Head (argued), David William Potts (briefed), Carson Fischer, Birmingham, MI, for Richard A. Bowden in No. 94-1096. George M. Head (argued and briefed), David William Potts (briefed), Carson Fischer, Birmingham, MI, for Plaintiff-Appellee, Cross-Appellant Bowden in Nos. 94-1096, 94-1098. Steven R. Gabel (argued and briefed), Gerald E. Thurswell, Thurswell, Chayet Weiner, Southfield, MI, for Plaintiff-Appellee, Cross-Appellant Jones in Nos. 94-1100, 94-1101.

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