BICKEL v. KOREAN AIR LINES CO

BAILEY BROWN, Circuit Judge.

This case first came before this panel on January 31, 1995, and was the subject of a prior opinion ( Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir. 1996)), in which we, inter alia, reversed the awards for predeath pain and suffering which each plaintiff won at trial. After we filed that opinion, the plaintiffs filed a Motion for Rehearing with a Suggestion for Rehearing En Banc, in which they alleged that we erred in reversing the predeath pain and suffering awards. After reviewing the plaintiffs' motion, and the defendant's response to it, we GRANT the motion and withdraw Section II, Part C and Section III of our prior opinion. We replace those portions of our prior opinion with the following text:

C.

In a supplemental brief filed after the Supreme Court announced its opinion in Zicherman, KAL urges us to reverse the awards for the decedents' predeath pain and sulfering which the plaintiffs' won at trial. KAL argues that, even though the Supreme Court expressly stated in Zicherman that the question of the propriety of the predeath pain and suffering awards was not before it, ___ U.S. at ___ n. 4, 116 S.Ct. at 636 n. 4, such awards cannot be squared with the Court's recognition that, under section 762 of DOHSA, plaintiffs may recover pecuniary damages only. In response, the plaintiffs argue (1) that KAL waived this issue when it failed to raise it in its opening briefs to this court, and (2) that DOHSA, a wrongful death statute, has no effect on their right to recover non-pecuniary predeath pain and suffering damages through a maritime common law survival action. See Sea-Land Servs. v. Gaudet, 414 U.S. 573, 575 n. 2, 94 S.Ct. 806, 810 n. 2, 39 L.Ed.2d 9 (discussing the differences between wrongful death actions and survival actions). Because we agree with the plaintiffs' first argument, we express no opinion on their second one.

We note, however that other circuits have allowed plaintiffs to recover predeath pain and suffering damages on maritime common law survival claims while collecting pecuniary wrongful death damages on a DOHSA claim. E.g. Azzopardi v. Ocean Drilling Exploration Co., 742 F.2d 890, 894 (5th Cir. 1984); Barbe v. Drummond, 507 F.2d 794, 799-800 (1st Cir. 1974).

Federal Rule of Appellate Procedure 28(a) requires that an appellant's brief include "a statement of the issues presented for review," and "[a]n argument" on each issue presented. While KAL appealed the issue of the sufficiency of the evidence to support the various predeath pain and suffering awards in the five trials below, none of the six opening briefs KAL submitted to this court identifies as an issue for appeal the propriety of allowing any such awards. "We normally decline to consider issues not raised in the appellant's opening brief[s]." Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989). KAL argues that we should not apply this rule to the instant appeal, however, contending that after it filed its opening briefs, the Supreme Court's decision in Zicherman intervened and changed the law on the availability of predeath pain and suffering damages. This contention is incorrect. As noted above, Zicherman does not address the propriety of the predeath pain and suffering damages awarded at trial in that case, and that award stands to this day. See Zicherman, ___ U.S. at ___ n. 4, 116 S.Ct. at 636 n. 4 (noting that KAL did not challenge the validity of the predeath pain and suffering award in its petition for certiorari).

Moreover, in stating that DOHSA disallows recovery of non-pecuniary loss of society damages, the Zicherman court merely followed settled law. The Court decided that question almost twenty years ago in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581 (1978). The Zicherman opinion therefore neither added to, nor made any changes in, the law regarding the availability of non-pecuniary damages under DOHSA. Thus, any argument that KAL could make based on the fact that DOHSA does not allow non-pecuniary damages was available to it before the Court decided Zicherman, and therefore KAL could have raised this issue in its opening briefs.

In fact, the record reflects that KAL presented the district court with the same argument it advances in its supplemental brief at a consolidated pretrial motions hearing on December 21, 1992. Joint Appendix at 701-02.

Indeed, in Forman v. Korean Air Lines, 84 F.3d 446, 448-49 (D.C. Cir. 1996), the D.C. Circuit refused to address the very argument KAL urges to us here, on the ground that KAL did not raise the issue until after the Supreme Court decided Zicherman, when KAL raised it in a reply brief. The court noted that "[t]he argument that pre-death pain and suffering damages are not available if DOHSA applies has been raised numerous times before Zicherman." Compare, e.g., Azzopardi v. Ocean Drilling Exploration Co., 742 F.2d 890, 893 (6th Cir. 1984) (allowing plaintiff to recover non-pecuniary survival damages under general maritime common law along with pecuniary wrongful death damages under DOHSA) with In re Air Disaster Near Honolulu, Hawaii, 792 F. Supp. 1541, 1545-46 (N.D.Cal. 1990) (holding that DOHSA preempted survival actions). Because KAL initially failed to challenge the propriety of awarding damages for predeath pain and suffering, and because Zicherman does not alter the state of the law on the availability of such awards, we decline to address this belatedly raised issue.

D.

Finally, KAL has challenged (1) the admission of videotaped expert testimony in two of the trials below, (2) the sufficiency of the evidence presented at each of the trials below to support the awards of predeath pain and suffering, and (3) the district court's failure to remit the predeath pain and suffering awards in three of the cases. We will address these issues seriatim.

Videotaped Expert Testimony

Five KAL Flight 007 damages cases went to trial in the Eastern District of Michigan before the Honorable Anna Diggs Taylor and all five of them are consolidated in this appeal. The first of the five cases to go to trial was the Bowden/Bissell case. At trial in Bowden/Bissell the plaintiffs presented the testimony of two experts. James McIntyre, a retired naval officer and former commercial airline pilot, testified regarding the emergency operation of a Boeing 747. Robert Elzy, a former naval officer who is an aviation physiologist, testified regarding the physical effects which the attack and the subsequent decompression and recompression of the aircraft might have had on the passengers. The plaintiff videotaped the experts' testimony so that it would be available to other plaintiffs for use in subsequent trials, should the experts be unavailable to testify in person. As it turned out, this Bowden/Bissell trial ended in a mistrial, and the case was later retried. The plaintiffs presented the videotaped expert testimony in the subsequent Bowden/Bissell trial, as well as at the four other damages trials. KAL now appeals the admission of the videotaped testimony in two of those trials: Bowden/Bissell and Jones/Zarif.

In their briefs, the parties refer to the individual cases in this manner, i.e., (personal representative) (decedent). For the sake of consistency, and to avoid confusion, we will do the same.

We review this matter for an abuse of discretion. See United States v. Phillips, 888 F.2d 38, 40 (6th Cir. 1989) "An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made." In re Bendectin, 857 F.2d 290, 307 (6th Cir. 1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989). In Bowden/Bissell, the plaintiff informed the court on the day the trial began, April 27, 1993, that he wished to use the videotaped testimony because the two experts were testifying in a KAL Flight 007 damages case in Washington, D.C. at the time. Finding that the witnesses were unavailable, and that KAL had sufficient motive and opportunity to cross examine the experts at the prior trial, the district court allowed the videotaped testimony under Federal Rule of Evidence 804(b)(1) and Federal Rule of Civil Procedure 32(a)(3)(B). Thus, on April 27, the plaintiff began playing McIntyre's videotaped testimony. Before the plaintiff resumed playing that testimony on April 28, KAL presented the court with the declaration of a defense attorney in the Washington case, which indicated that McIntyre had completed his testimony in that case on April 26, and that Elzy had completed his testimony on the 27th. The defendants therefore argued that the experts were no longer "unavailable" and could have flown directly to Detroit and testified live. Nonetheless, the district court allowed the videotaped testimony to continue.

KAL contends this was an abuse of discretion. We disagree. While, in retrospect, it appears that the two experts could have wound up their testimony in Washington, caught an evening flight to Detroit, and been available to testify there the following morning, we must review the district court's decision with an appreciation for the difficulties of ensuring the smooth progression of the proceedings in its court. When the court initially decided to allow the videotaped testimony, it did not know that the experts would finish their testimony in Washington in time to appear in Detroit. Once KAL informed the court that the experts had concluded their Washington testimony, the plaintiff was already in the middle of offering the videotaped testimony. Ordering the plaintiff to produce one or both of the witnesses for live testimony could have resulted in a substantial delay. Considering that the testimony that the experts would have given "live" was substantially the same as the testimony on videotape, and that the videotaped testimony occurred at a prior trial in this same case, we are not "firmly convinced" that the district court erred in allowing the videotaped testimony to continue.

Zarif/Jones was the last of the five cases to come to trial, and, unlike the previous four cases, it was tried to the bench rather than to a jury. As in each of the previous cases, however, the plaintiff in Zarif/Jones sought to use the videotaped expert testimony of McIntyre and Elzy, claiming that the experts were "bound by prior commitments." KAL again objected, arguing that "live" testimony is important in assisting the trier of fact in credibility determinations. The district court responded:

Well, I am going to proceed with the Plaintiff's case and will permit the Plaintiff's experts to be heard by video tape here. The Court has heard them in person, seen them cross-examined more than once, each of them, and seen the video tapes. I don't think the credibility determination will be that crucial.

Once again, we cannot say that the district court erred in allowing the plaintiff to present videotaped testimony. Assuming the truth of the plaintiff's claims that the experts were unavailable to testify at the times for which the trial was scheduled, the district court again had to balance the need for viewing the witnesses live against the substantial scheduling concerns attendant to conducting a trial in federal district court. Considering that Judge Taylor had seen the plaintiff's experts testify live, and that this case was tried to the bench rather than to a jury, we will not disturb the district court's ruling.

It bears noting that there is evidence in the record of another trial, the Jones/Chambers trial, indicating that the district court anticipated the use of the videotaped testimony in all of the trials when it granted KAL's request to try each action separately. In Jones/Chambers, the court, discussing the use of the videotaped testimony, stated: "I want to remind you that it the court had been aware that you would have insisted on the presence of the plaintiff's experts at every trial, maybe I would have looked more closely at this insistence that there be six different trials."

Sufficiency of the Evidence

KAL has challenged the sufficiency of the evidence presented in each trial below to support the various awards of predeath pain and suffering. In reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable to the plaintiffs. Molton v. City of Cleveland, 839 F.2d 240, 241-42 (6th Cir. 1988), cert. denied, 489 U.S. 1068, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989). At the trials below, the plaintiffs presented evidence from which a jury could infer that each passenger (1) survived the initial explosion which caused a hole in the rear section of the fuselage, (2) donned an emergency oxygen mask, and (3) remained conscious during the twelve minute descent into the Sea of Japan, suffering the physical effects of decompression and recompression along the way as well as the horror of knowing that death was imminent. This evidence was sufficient to support awards for predeath pain and suffering in these cases. Accord Forman v. Korean Air Lines, 84 F.3d 446, 449 (D.C. Cir. 1996) (affirming predeath pain and suffering award in a KAL Flight 007 case on evidence essentially the same as that presented in the cases before us); Hollie v. Korean Air Lines, 60 F.3d 90, 92-93 (2d Cir. 1995) (same), judgment vacated on other grounds and case remanded, ___ U.S. ___, 116 S.Ct. 808, 133 L.Ed.2d 754 (1996); Zicherman v. Korean Air Lines, 43 F.3d 18, 23 (2d Cir. 1994) (same), rev'd in part on other grounds, ___ U.S. ___, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996).

Remittitur

KAL also appeals from the district court's refusal to remit the predeath pain and suffering awards in (1) Jones/Chambers, where the jury awarded $400,000 in predeath pain and suffering damages; (2) Bowden/Bissell, where the jury awarded $1,350,000 in predeath pain and suffering damages; and (3) Jones/Zarif, where the court awarded $1,000,000 in predeath pain and suffering damages.

This court reviews a district court's denial of a motion for a remittitur for an abuse of discretion. Roush v. KFC Nat'l Management Co., 10 F.3d 392, 397 (1993), cert. denied, ___ U.S. ___, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994). District court's should grant such motions only "if the award clearly exceeds `the amount which, under the evidence in the case was the maximum that a jury could reasonably find to be compensatory' for the plaintiff's loss." In re Lewis, 845 F.2d 624, 635 (6th Cir. 1988) (quoting Manning v. Altec, Inc., 488 F.2d 127, 133 (6th Cir. 1973)). "Unless the award is (1) beyond the range supportable by proof or (2) so excessive as to shock the conscience, . . . or (3) the result of a mistake, we must let the award stand." Leila Hosp. Health Ctr. v. Xonics Medical Sys., 948 F.2d 271, 278 (6th Cir. 1991).

The district court did not abuse its discretion in denying KAL's motions. It is impossible to determine the exact value of the pain and suffering which the decedents may have endured. In reviewing these three challenged awards, we acknowledge that the proof in these cases would support findings by the three factfinders (two different juries and the district judge) that the decedents (1) remained conscious during the entire twelve minute descent of the aircraft, (2) suffered substantial physical pain during the descent, and (3) knew they would die upon impact. One simply cannot quantify the mental and physical pain and suffering such an experience would cause, and thus we cannot conclude that the evidence does not support the awards. Since there is no basis for concluding that the factfinders made "mistakes" (either in their findings or their arithmetic, if any), we will reverse the district court and remit these awards only if they "shock our conscience." They do not.

III.

For the forgoing reasons, we REVERSE in part and AFFIRM in part the judgments of the district court. We REMAND these cases for the entries of judgments consistent with this opinion.