Giancontieri v. Pan American World Airways, Inc.

W. EUGENE DAVIS, Circuit Judge:

This is one of more than three hundred lawsuits stemming from the July 9, 1982 crash of Pan American World Airways flight 759 in Kenner, Louisiana. The plane’s fuselage completely destroyed the home of Robert Giancontieri, killing his wife, Sandra, twenty-six, and his three children, Robert, six, Ryan, four, and Christopher, three months. In Mr. Giancontieri’s wrongful death action, the jury awarded the following damages:

1) Loss of love, affection and companionship of Sandra $1,500,000

2) Loss of love, affection and companionship of son Robert $ 400,000

3) Loss of love, affection and companionship of son Ryan $ 400,000

4) Loss of love, affection and companionship of son Christopher $ 400,000

5) Survival action for pre-death pain and suffering of Sandra $ 100,000

6) Mental anguish over loss of home and contents $ 50,000¹

Although a claim for the conscious pain and suffering prior to death of the three children was made, the jury awarded no damages for this item. After a hearing on Pan Am’s request for a new trial, the district court granted the motion unless Giancontieri agreed to remit to $1,000,000 the $1.5 million award for the loss of his wife’s love and affection, remit to $15,000 the $100,000 award for her pain and suffering and remit to $15,000 the $50,000 award for his own mental anguish over the loss of his house and its contents. Giancontieri agreed to the remittitur, and this appeal followed. Both parties assert numerous grounds for adjusting the damage awards upward or downward.²

I.

Before considering the parties’ challenges to the damage awards, several evidentiary issues must be disposed of. Pan Am cites three of the district court’s evidentiary rulings as requiring reversal: 1) the admission of photographs of the bodies of the decedents; 2) the refusal to admit evidence that Giancontieri had' contracted venereal disease during his marriage; and 3) the refusal to admit evidence of Giancontieri’s remarriage until the end of trial, when Giancontieri himself testified.

Admission or exclusion of evidence during the course of the trial is the responsibility of the district judge, and, absent some abuse of discretion, his decisions will not be disturbed on appeal. E.g., Big John, B.V. v. Indian Head Grain Company, 718 F.2d 143, 146 (5th Cir.1983). Although “[a]ll relevant evidence is admissible,” Fed.R. Evid. 402, the district judge has the discretion to exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403.

Pan Am argues that admission of the photographs of the bodies of Giancontieri’s family, three of them charred by fire, served no purpose other than to gain the jury’s sympathy. Giancontieri counters that the photographs demonstrated that three of the decedents died of third degree burns and thus endured conscious pain and suffering prior to their deaths, and also corroborated the testimony of the two witnesses who described finding the bodies. While the testimony of the witnesses describing the discovery and condition of the bodies was not contradicted, and therefore there was little need to introduce the photographs in corroboration, we nonetheless conclude that their admission was not an abuse of discretion requiring reversal. Although unsettling, these photographs were not so gruesome that their prejudicial potential absolutely required their exclusion.

Likewise, we find no abuse of discretion in the district court’s refusal to admit evidence of Giancontieri’s contracting venereal disease. Giancontieri admitted on the stand that he had once been unfaithful to his wife; admission of the evidence of venereal disease would have proved nothing more. The decision that the prejudicial potential of this evidence outweighed its value was well within the district court’s discretion.

Giancontieri’s attorney obtained an in limine ruling prohibiting reference to Giancontieri’s remarriage after the death of his family. After the testimony of the first witness, defendants’ counsel informed the judge of his belief that Giancontieri’s counsel was depicting Giancontieri as a completely broken man, unable to function in society, thus “opening the door” to evidence of the remarriage. Although the district judge substantially concurred in Pan Am’s assessment of counsel for plaintiff’s strategy, he nonetheless continued to exclude any inquiry into the subject of the remarriage until Giancontieri himself took the stand as the final witness. In the meantime, various of Giancontieri’s relatives, acquaintances, and friends testified concerning his problems with readjustment. Many of their statements indicated that Giancontieri’s mental condition showed no signs of improvement and that he was unable to maintain normal relationships. Pan Am contends that the tardy decision to admit evidence of Giancontieri’s remarriage could not counter the effect of this misleading testimony.

Giancontieri argues that, based on the Louisiana jurisprudence we are bound to follow, evidence of the remarriage should not have been admitted at all.³ The Louisiana decisions forbidding introduction of evidence of remarriage of the surviving spouse are primarily concerned that a defendant might use this evidence to attempt to mitigate the emotional damages occasioned by the loss of the spouse, which are considered to be fixed at the time of the loss. In this case, when the district court decided to admit evidence of plaintiff’s remarriage it immediately cautioned the jury that this evidence was not to be used in any fashion to mitigate damages. This instruction was repeated in the final charge to the jury. In Caldarera v. Eastern Air Lines, we noted that the district court’s decision to exclude evidence of a remarriage “is not subject to scrutiny by an appellate Bureau of Weights and Standards that balances the factors gram for gram,” 705 F.2d at 782. The same holds true when evidence of the remarriage is admitted. The district court watching the drama of the trial unfold was in a much better position than are we to evaluate whether and at what point Pan Am should have been permitted to disclose this evidence to rebut plaintiff’s evidence of his inability to function emotionally and to form and maintain relationships with others. We find no abuse of discretion in the district court’s cautious handling of this delicate subject matter.

II. Propriety of the Damage Awards for Loss of Love and Affection

Pan Am contends that the damage awards for loss of love, affection and companionship for Giancontieri’s wife and children are, even as remitted, excessive as a matter of law.

In evaluating the propriety of these awards, we start from the bedrock principle that the determination of the extent of damages is for the trier of fact, and in this area the appellate court should step lightly or not at all. Judge Rubin’s precis of the law for this court in Caldarera v. Eastern Air Lines can hardly be improved upon:

Because the assessment of damages for grief and emotional distress is so dependent on the facts and is so largely a matter of judgment, we are chary of substituting our views for those of the trial judge. He has seen the parties and heard the evidence; we have only read papers.

The jury’s assessment of damages is even more weighted against appellate reconsideration, especially when, as in the case of the award to Peter Caldarera, the trial judge has approved it. We do not reverse a jury verdict for excessiveness except on “the strongest of showings.” The jury’s award is not to be disturbed unless it is entirely disproportionate to the injury sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to “shock the judicial conscience,” “so gross or inordinately large as to be contrary to right reason,” so exaggerated as to indicate “bias, passion, prejudice, corruption, or other improper motive,” or as “clearly ex-ceedpng] that amount that any reasonable man could feel the claimant is entitled to.”

705 F.2d at 783-84 (footnotes and citations omitted)

Pan Am also contends that in this diversity case, Erie Railroad Co. v. Tompkins dictates that we may not affirm an award higher than that which would be allowed by the highest court of the state whose law we are applying. There is some apparent conflict in the eases concerning whether the excessiveness of a verdict is a matter governed by state or federal law,⁴ but it is not necessary that we attempt here to resolve whatever conflict there may be. The Louisiana standard for determining whether a verdict is excessive is set forth in Reck v. Stevens, 373 So.2d 498 (La.1979):

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determines that the award is excessive____ Thus, the initial inquiry must always be directed at whether the prior court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of facts ‘much discretion,’ ... in the award of damages____ In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function____ The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards ... for (truly) ‘similar’ injuries----

373 So.2d at 501 (emphasis in original).

In practical application this standard is no more precise than the federal standards set forth in Caldarera; under both the decision whether an award must be reduced is one which “cannot be supported entirely by rational analysis. It is inherently subjective in large part, involving the interplay of experience and emotions as well as calculation.” Caldarera, 705 F.2d at 784. And of course, under both the state and the federal standards, the touchstone must be the facts in the record of the individual case. Caldarera, 705 F.2d at 785; Reck v. Stevens, 373 So.2d at 501. We therefore do not find it necessary to either accept or reject Pan Am’s contention that the Louisiana standard should apply. See Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th Cir.1983).

Under either standard we have no doubt that the awards for loss of love and affection in this case are excessive and constitute an abuse of the trier of fact’s discretion. As Caldarera stated:

The loss of a loved one is not measurable in money. Human life is, indeed priceless. Yet the very purpose of the lawsuit for wrongful death is to fix damages in money for what cannot be measured in money’s worth. Unless we are to accept any verdict, in whatever amount, as a legally acceptable measure, we must review the amount a jury or a trial court awards____ The sky is simply not the limit for jury verdicts, even those that have been once reviewed.

705 F.2d at 784.

Much more difficult is determining the amount which the jury could permissibly have awarded. For what rough guidance they provide, we examine past awards for similar injuries. See Haley v. Pan American World Airways, Inc., 746 F.2d 311, 318-19 (5th Cir.1984). Of course, simply because certain awards have been affirmed does not indicate that these are the highest, or even near the highest, awards which might be allowed.

The highest reported Louisiana state court award for the loss of love and companionship of a spouse is the $200,000 awarded in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1980). In Cheat-ham, the court of appeals reduced the original jury verdict of $200,000 to $50,000. The Louisiana Supreme Court reversed and reinstated the original verdict, stating that “although the awards may have been high they were within a discretionary range such that we cannot say that the jury erred.” 378 So.2d at 378. A number of awards for loss of the love and affection of a spouse ranging from $100,000 to $150,000 have also been affirmed.⁵

The highest reported Louisiana state court award for the loss of the love and affection of a child appears to be $150,000, an amount which has been approved in at least two cases.⁶ Several other cases have approved awards of $100,000 or more.⁷

In addition, three recent cases decided by this circuit have involved the issue of quantum of damages for emotional loss resulting from the death of a loved one under Louisiana law. In Caldarera v. Eastern Air Lines, plaintiff lost his wife, mother, and eight-year old son in a plane crash. The district judge assessed damages against the United States in the amount of $797,021, of which $400,000 was for loss of love and companionship of his wife, $100,-000 was for loss of love and companionship of his mother, and $150,000 for loss of love and companionship for his son. The panel determined that the maximum which could be awarded for the loss of love and affection of the wife was $250,000, and the maximum which could be awarded for the loss of love and affection of the son was $225,000.⁸

In Haley v. Pan American World Airways, 746 F.2d 311 (5th Cir.1984) the parents of a twenty-five-year-old man killed in the crash of Flight 759 were awarded $350,000 each for the loss of love and companionship of their son. The panel concluded that in the specific circumstances of that case, the maximum amount which could be awarded to each parent was $200,000. 746 F.2d at 318-19.

Finally, in Winbourne v. Eastern Air Lines, Inc., 758 F.2d 1016 (5th Cir.1984), the plaintiff lost his wife and two daughters — his entire family. The district judge allocated damages of $500,000 for the loss of love and affection of the wife. A panel of this court affirmed, noting that the plaintiff had lost his entire family, and remained “lost and disturbed.”

We find that $500,000 for the loss of love and affection of the wife and $250,000 for the loss of love and affection of each child are the maximum amounts which may be awarded in this case. We reach this conclusion first and foremost on the evidence in this record, and secondarily on the rough guidance provided by awards approved for similar injuries by the Louisiana appellate courts and the decisions of this court applying Louisiana law. We do not, of course, intimate that the award we approve in this case is the highest which might be awarded in any case, nor that an award in this amount could not be approved on facts which differ in some respects from those in this case. We hold only that on the facts of this case, these are the maximum awards which may be sustained.

III. Other Damage Items

A. Survival Action for Pain and Suffering

Pan Am argues that the award for damages for Sandra Giancontieri’s conscious pain and suffering prior to death must be reversed, because there is no evidence in the record from which the jury could properly conclude that she was conscious between the impact and her demise. Giancontieri counters that the individual who discovered Mrs. Giancontieri’s body testified that it was in a crawling position, a statement which was corroborated by the photographs of the body. In addition, Giancontieri relies on a pathologist’s testimony that Mrs. Giancontieri died of 100% third degree burns, and that the process of death from this cause is not instantaneous, but takes from five to thirty seconds.

There was in fact no evidence that Mrs. Giancontieri was conscious after the impact of the plane with the ground. Because the house was destroyed around Mrs. Giancontieri, it is impossible to attribute any significance to the fact that her body was found in a position which could be characterized as a “crawling-type” position. The pathologist testified that he could not state whether any of the decedents were conscious after the impact. There is simply no direct or circumstantial evidence from which it could be inferred that Mrs. Giancontieri felt anything between the impact of the plane and her death.⁹ This award must therefore be reversed.

B. Damages for Mental Anguish from Loss of Property-

In seeking reversal of the $15,000 award for Giancontieri’s mental anguish from loss of property, Pan Am makes the dual argument that Giancontieri did not even testify that he felt any anguish over the loss of the house and contents, and that Louisiana law does not allow an individual who was not present to witness the destruction of his property to recover this item of damages. Giancontieri argues that he was on the scene immediately following the crash and that although his house was leveled, he saw its flaming rubble.

As Pan Am argues, Louisiana law generally does require that an individual be present to see the destruction of his property before hé can recover for anguish caused by that destruction. E.g., Dugas v. St. Martin Parish Police Jury, 351 So.2d 271, 276 (La.App. 3d Cir.1977), writ denied, 353 So.2d 1046 (La.1978).¹⁰ The basis for this rule appears to be that absent his presence at the scene, a plaintiff usually cannot make the strong showing of causal nexus between the destruction of the property and the mental anguish necessary to prove such a claim. See Elston v. Valley Electric Membership Corp., 381 So.2d 554, 556 (La.App. 2d Cir.1980).

In this case Giancontieri testified that he arrived on the scene in time to see the remnants of his house after its destruction. The psychiatrists called by the plaintiff testified that his mental problems were “reactive and related to the incident which led to the loss of his wife and family and his property ” and “due to the death of his wife, three children and the loss of his household and his personal property.” Giancontieri himself did not testify concerning his feelings about the loss of his home.

Like Turgeau v. Pan American World Airways, 764 F.2d 1084 (5th Cir. 1985), this case presents us with a situation in which expert testimony briefly and without explanation identifies a loss of property as one of the causes of a psychological injury. In both cases the major cause of the injury is clearly something else — in Turgeau, concern over family members; here, the actual loss of family members. In neither case is the jury given any basis whatever on which to evaluate the extent of the injury actually attributable to loss of property. As in Turgeau, we conclude that to allow recovery for mental anguish damages resulting from damage to property would be inconsistent with the strong showing of causal nexus between damage and injury required by Louisiana law. This award must therefore be reversed.

C. Loss of Services

Giancontieri was awarded $200,000 for loss of the services of his wife. Pan Am argues that the only evidence which supported this award was the testimony of various relatives that Mrs. Giancontieri was a good mother who kept a neat house and cooked for Mr. Giancontieri. Because there was no testimony concerning the amount of time Mrs. Giancontieri spent actually cooking and performing services for Mr. Giancontieri, Pan Am argues that any award for loss of services is completely unsupported by the record. Pan Am contends that the testimony of Giancontieri’s economist was completely abstract — referring solely to the cost of hiring a housekeeper from a particular agency for eight hours a day, five days a week, for forty-three years. Giancontieri counters that the economist’s “unrebutted” testimony revealed that the loss of services figure should be much higher.

We decline to disturb this damage award. Pan Am’s argument fails because it is clear from the trial testimony that Mrs. Giancontieri did cook and maintain a home for her husband and children. Giancontieri’s argument fails as well, because the economist’s testimony does not appear to have been grounded in any knowledge of the particular facts of the Giancontieri’s relationship or of the role that Mrs. Giancontieri took in the household. The testimony concerning Mrs. Giancontieri’s role in the household and the economist’s testimony concerning the cost of obtaining a housekeeper were sufficient to allow the jury to infer that $200,000 was proper compensation for this item. The jury’s award is supported by the record and will be allowed to stand.

D. Prejudgment Interest

Pan Am requested that the court not award legal interest from the date of judicial demand on all sums awarded for future losses. The district judge denied this request, because under La.Rev.Stat. 13:4203, legal interest is recoverable from the date of judicial demand on all claims arising ex delicto. Pan Am does not argue that section 13:4203 does not apply, but argues that as a matter of economics and constitutional law it cannot apply to awards for future losses, since by definition the plaintiff had no right to receive these sums as of the date of judicial demand. Pan Am’s argument is, as a matter of economics, entirely sound.¹¹ The Louisiana courts have, however, interpreted section 13:4203 to allow an award of interest on future damages as well as present damages. Schackai v. Tenneco Oil Co., 436 So.2d 729, 735 (La.App. 4th Cir.), writ denied, 440 So.2d 759 (La.1983). In a diversity case, we are bound to follow this interpretation of the will of the Louisiana legislature.

IV. Other Miscellaneous Points of Error

Travelers Insurance Company was included as a party in the judgment, although the parties stipulated prior to trial that all defendants other than Pan Am and the United States would be dismissed with prejudice. Counsel for Giancontieri conceded at oral argument that this stipulation was properly made. Travelers should therefore be removed as a party defendant.

Giancontieri makes sundry other allegations of error: The district judge was biased against him, the district judge erred in allowing post-trial supplementation of the record to reflect the contents of an in limine ruling, the district court forced him to waive his claims for future loss of income and future medical expenses, the award for loss of contents of the house is inadequate, the district judge improperly restricted the testimony of his expert witnesses, and the district judge forced him to stipulate to both the amount of funeral expenses and the amount of his past medical expenses. After examining these contentions and the record, we find them to be without merit.

CONCLUSION

Pan Am is granted a new trial on the claims for the loss of love and affection of his wife and children unless Mr. Giancontieri agrees to a remittitur of the awards for these items to the amounts set forth in part II of this opinion. To the extent the judgment of the district court includes the awards for Sandra Giancontieri’s conscious pain and suffering and for Mr. Giancontieri’s distress over the loss of his property, it is REVERSED. The judgment is in all other respects AFFIRMED.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

1 . The jury also made the following awards:

1) Damage to home (in addition to proceeds of homeowner’s policy) $ 15,000.00

2) Loss of contents of home (in addition to proceeds of homeowner’s policy) $ 30,000.00

3) Loss of Sandra's services $200,000.00

4) Past medical expenses $ 1,500.00

5) Funeral expenses $ 16,438.48

Most of these awards are protested in some fashion by one or both of the parties to this appeal. Since these present less troublesome legal issues than the awards for loss of the family, we merely note their presence here and reserve discussion of them until parts III and IV of this opinion.

2 . Giancontieri requests that we reverse the remittitur, but it is settled that a plaintiff may not appeal a remitted award after accepting it. See Donovan v. Penn Shipping Company, Inc., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977); Higgins v. Smith International, Inc., 716 F.2d 278, 282 (5th Cir.1983).

3 . See Caldarera v. Eastern Air Lines, Inc., 705 F.2d 778, 782 (5th Cir.1983); McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183, 186 (1961); Lofton v. Cade, 359 So.2d 1074, 1075 (La.App. 3d Cir.), writ denied, 360 So.2d 1177 (La.1978).

4 . A number of cases stand for the proposition Pan Am urges — that the highest award which could be affirmed by a state court forms a substantive limit on what the federal court may allow. See e.g., Hysell v. Iowa Public Service Co., 559 F.2d 468, 472 (8th Cir.1977); Ouachita National Bank v. Tosco Corp., 686 F.2d 1291, 1297 (8th Cir.1982), rev’d on other grounds, 716 F.2d 485 (8th Cir.1983) (en banc); Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir.1984). It is generally accepted, however, that the question whether a new trial should be granted, including a new trial on the basis of excessive damages, is a purely procedural one, governed by federal law. See e.g. Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1238 (5th Cir.1985); 11 Wright & Miller, Federal Practice and Procedure § 2802, at 29-31. It is apparent that these lines of cases hold at least the potential for conflict. See also Lowe v. General Motors Corp., 624 F.2d 1373, 1383 (5th Cir.1980) (“while the state standard ... would apply to the substantive issue whether the verdict in this case was excessive, a Federal standard applies to determine the slightly different procedural question of whether a Federal District Court, sitting in diversity, should automatically grant a new trial on the basis of excessive damages.”)

5 . See Pitre v. Aetna Life and Casualty Co., 434 So.2d 191 (La.App. 3d Cir.1983), rev'd on other grounds, 456 So.2d 626 (La. 1984); Duvernay v. Dept. of Public Safety, 433 So.2d 254 (La.App. 1st Cir.), writ denied, 440 So.2d 150 (La.1983); Bialy v. State Department of Transportation and Development, 414 So.2d 1273 (La.App. 3d Cir.), writ denied, 417 So.2d 367 (La.1982); Hardy v. Department of Highways, 404 So.2d 981 (La. App. 3d Cir.), writ denied, 407 So.2d 741 (La. 1981).

6 . See Lang v. Prince, 447 So.2d 1112 (La.App. 1st Cir.1984), writ denied, 450 So.2d 1309 (La.1984); Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983).

7 . Johnson v. Folse, 438 So.2d 1137 (La.App. 1st Cir.1983); Pawlak v. Brown, 430 So.2d 1346 (La.App. 3d Cir.), writ denied, 439 So.2d 1072 (La.1983); Bullard v. Department of Transportation and Development, 413 So.2d 606 (La.App. 1st Cir.1982).

8 . It was necessary to determine the maximum amount which could be awarded for the loss of the son, because this circuit's “maximum recovery" rule which dictates that a verdict be reduced only to the maximum amount the jury could properly have awarded. Caldarera, 705 F.2d at 784.

9 . This holding is not in conflict with Pregeant v. Pan American World Airways, Inc., 762 F.2d 1245 (5th Cir.1985). The decedent in Pregeant was a flight attendant on Flight 759. There was testimony in that case that:

[Ejveryone aboard would have lost consciousness within two-to-three seconds following impact. The impact period ... was at least two-to-three seconds plus the time it took for the aircraft to travel approximately 400 feet during its disintegration ... [The decedent's] body was severely burned and was found in the braced position flight attendants are trained to assume prior to a crash. The impact and disintegration of the aircraft extended over several seconds before the aircraft and its human contents came to rest.

762 F.2d at 1250.

There was no like testimony, from which an inference of continued consciousness could be drawn, in this case.

10 . Louisiana law also allows recovery for mental anguish caused by property damage under three other circumstances: (1) when the damage is caused by an intentional or illegal act; (2) when the damage is caused by acts constituting a continuing nuisance; or (3) when the damage is caused by acts for which the tortfeasor will be strictly or absolutely liable. E.g., id.; Meshell v. Insurance Co. of North America, 416 So.2d 1383, 1387 (La.App. 3d Cir.1982).

11 . Pan Am also contends that this application of the statute is unconstitutional, but has supplied no reasoning to support this position, and none is obvious.