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October 29, 1992


The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY


 This case arises out of the tragic downing of Korean Air Lines Flight KE007. On September 1, 1983, while the plane was en route from New York to Seoul, South Korea, the plane strayed into Soviet airspace and was shot down by Soviet military aircraft over the Sea of Japan. All 269 persons aboard were killed. Muriel A.M.S. Kole was among those who perished. Muriel Mahalek, her mother, and Marjorie Zicherman, her sister and executrix of her estate, are among the many surviving relatives who filed suit to recover damages under the Warsaw Convention which applies specifically to such airline disasters and to which the United States is a party. *fn1"


 All federal court actions in the United States arising out of this disaster were transferred in 1983 to the United States District Court for the District of Columbia (Chief Judge Aubrey E. Robinson, Jr.) for coordinated and consolidated proceedings on the common liability issues.

 The common liability issues -- whether the destruction of Flight KE007 by Soviet military aircraft was proximately caused by the "wilful misconduct" of KAL or its employees within the meaning of Article 25 of the Warsaw Convention and whether punitive damages are recoverable -- were tried to a jury in the District of Columbia. The jury returned a verdict finding that the downing of Flight KE007 and the deaths of all on board were proximately caused by the "wilful misconduct" of the flight crew of Flight KE007 and assessed punitive damages against KAL. Individual compensatory damages were to be separately determined. The Court of Appeals for the District of Columbia Circuit upheld the jury finding of "wilful misconduct." However, it vacated the punitive damage award, holding that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 616, 116 L. Ed. 2d 638 (1991) ("In re Korean Air Lines"). Accord In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267 (2nd Cir.), cert. denied U.S. , 112 S. Ct. 331, 116 L. Ed. 2d 272 (1991) ("Lockerbie"). Plaintiffs and KAL each filed a petition for a writ of certiorari. Both petitions were denied by the United States Supreme Court on December 2, 1991. Dooley v. Korean Air Lines Co., Ltd., U.S. , 112 S. Ct. 616, 116 L. Ed. 2d 638 (1991). The common liability issues having been determined (i.e. the existence of Article 25 "wilful misconduct" which lifts the otherwise applicable $ 75,000 cap on damages in airline crashes and the non-recoverability of punitive damages), these cases were remanded by the Judicial Panel on Multidistrict Litigation to the original transferor courts for trial of issues relating to compensatory damages and by whom recoverable.

 Plaintiffs' and Defendant's Claims Regarding Damages

 The instant case is now before this court for trial on the issue of compensatory damages sought by decedent's mother and sister in their individual capacities and by the sister as the executrix of decedent's estate for the benefit of the estate and its beneficiaries. Plaintiffs' amended complaint in this action seeks recovery of damages under the Warsaw Convention or the Death On the High Seas Act ("DOHSA"). *fn2" Plaintiffs seek to recover for both pecuniary and non-pecuniary losses under the Warsaw Convention or, in the alternative, pecuniary losses under DOHSA.

 Plaintiffs' contend that the Warsaw Convention creates a cause of action for injuries sustained in favor of any person who has suffered any loss whether pecuniary or non-pecuniary as a result of an airplane accident or disaster. Decedent's mother seeks damages for mental anguish and grief associated with her daughter's death as well as loss of love, affection, and companionship. Decedent's sister also seeks damages for such losses in her individual capacity. As executrix of her deceased sister's estate, the sister seeks to recover for decedent's conscious pain and suffering before her death on the plane and loss of the quality or enjoyment of life as well as loss of support, loss of services, and loss of inheritance for herself and decedent's mother.

 Defendant's basic claim is that plaintiffs are limited to an action brought by decedent's estate for decedent's wrongful death caused by the plane disaster, a cause of action provided for by the DOHSA, and the recovery of pecuniary losses only as provided by DOHSA. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990). Defendant has made several pre-trial motions alleging the procedural and substantive impact of DOHSA. DOHSA, enacted by the Congress in 1920 to provide specifically for a remedy in admiralty for the dependent survivors of seamen for wrongful death on the high seas, applies only when death occurs on the high seas more than a marine league (3 miles) from the shore of any state, the District of Columbia, or any territory of the United States and has been construed by the Supreme Court to limit dependent survivors' losses to pecuniary losses. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622-23, 56 L. Ed. 2d 581, 98 S. Ct. 2010, reh'g denied, 439 U.S. 884, 58 L. Ed. 2d 200, 99 S. Ct. 232 (1978); Miles, 112 L. Ed 2d at 290.

 Parties Pre-Trial Motions

 Accordingly, defendant moves to: 1) strike plaintiffs' jury demand; 2) limit the determination of damages to those available under DOHSA; 3) dismiss decedent's mother, Muriel Mahalek, as a party plaintiff; 4) preclude the testimony of plaintiffs' economist with respect to lost future wages of decedent; 5) dismiss claims for decedent's pre-death pain and suffering; 6) preclude the testimony of experts relevant to this issue; 7) preclude recovery for plaintiffs' grief, mental distress, and loss of decedent's love and companionship; and 8) exclude any reference to and evidence of "wilful misconduct" on the part of KAL as found by the jury in the joint liability trial.

 Plaintiffs seek additional recovery for decedent's loss of the quality and enjoyment of life and have moved to exclude the testimony of decedent's husband, Michael Kole.

 Summary Of This Court's Holdings On The Parties Motions

 This court holds that plaintiffs are entitled to a jury trial; that the determination of damages and by whom recoverable under the Warsaw Convention are not limited by DOHSA; that survival actions are permitted under the Warsaw Convention; that the estate may recover for decedent's conscious pain and suffering prior to her death; that the estate cannot recover for decedent's loss of the quality or enjoyment of life; that estate may recover for loss of support, lost services and loss of inheritance for any dependent survivors or beneficiary of the estate; that the individual non-dependent plaintiffs suing in their individual capacities may recover for mental injury connected to physical injury, loss of love and affection, lost inheritance, and lost services. Muriel Mahalek may, therefore, proceed as a party plaintiff. The testimony of Michael Kole, decedent's husband, a non-party, will be excluded as too prejudicial. References to the prior jury's finding of "wilful misconduct" where relevant will not be excluded, and the inability to impose punitive damages will be part of the court's instructions to the jury.

 Law Applicable To Warsaw Convention Cases

 The Warsaw Convention is a treaty signed by many nations, including the United States. It was ratified by the Senate as required by the Constitution. U.S. CONST. art II, § 2. It is thus the Supreme law of the land. See Lockerbie, 928 F.2d at 1278. The Second Circuit in Lockerbie held that the Warsaw Convention is a federally-created cause of action, preempting all state causes of action, and must be construed exclusively under federal common law. See also In re Inflight Explosion on Trans World Airlines, Inc. Aircraft Approaching Athens, Greece on April 2, 1986, 778 F. Supp. 625, 629 (E.D.N.Y. 1991), rev'd on other grounds, 975 F.2d 35 (2nd Cir. 1992) ("Inflight Explosion"). The Warsaw Convention, after providing for suit for "damages sustained" (Warsaw Conv., art. 17) by passengers or their "survivors" ( In re Korean Air Lines, 932 F.2d at 1485-86), provides that questions as to who are the persons who have the right to bring suit and what are their respective rights, measure of damages, as well as procedural questions, shall be determined by the national law of the court where suit is brought. Warsaw Conv., art. 24(2). Lockerbie, 928 F.2d at 1283. Therefore, the determination of the issues brought on by defendant's motions are governed by federal law and since the Warsaw Convention, the source of plaintiffs' causes of action, is a federal statute, in construing that statute, federal courts must look to, apply, and develop federal common law. Lockerbie, 928 F.2d at 1278-79.


 Defendant claims that there is a federal statute, DOHSA, which provides the exclusive remedy in this case under the Warsaw Convention. Defendant also argues that DOHSA is an action which can only be heard by this court sitting in admiralty without a jury, since juries are not available in admiralty. Waring v. Clarke, 46 U.S. 441, 464, 12 L. Ed. 226 (1847) ("civil causes of admiralty and maritime jurisdiction shall not be tried by a jury"); Romero v. International Terminal Operating Co., 358 U.S. 354, 371, 3 L. Ed. 2d 368 , 79 S. Ct. 468 n. 28 (1959), reh den, 359 U.S. 962, 79 S. Ct. 795, 3 L. Ed. 2d 769 (1959) (no jury right in admiralty). Defendant thus moves to strike plaintiffs' jury demand. Defendant's motion to strike plaintiffs' jury demand is denied.

 Since it has been determined, by the Second Circuit, that the applicable law is the Warsaw Convention, a federal statute, which must be construed in the light of federal law, we must first look to the statute. The Warsaw Convention neither provides for nor bars jury trials in cases arising under it. Since Congress has not provided that Warsaw Convention claims be tried by jury and has not barred juries in such cases, we must look to federal common law and other federal statutes for guidance. DOHSA is only one such federal statute. Both the Federal Employers Liability Act ("FELA") *fn3" and the Jones Act *fn4" contemplate jury trials in negligence, survival, and wrongful death cases for railroad employees and seamen, respectively. In Civil Rights Cases and Bivens-type cases, *fn5" juries are allowed where damages are sought for violations of constitutional and civil rights. *fn6" Congressional policy and federal common law thus seem to favor jury trials in personal injury and wrongful death cases, and Congress has not proscribed jury trials under the Jones Act, which provides for a seamen's action at law, notwithstanding the fact that he might have brought an action in admiralty to recover for his injuries. Miles, 112 L. Ed. 2d at 285-288.

 Applying DOHSA strictly to exclude jury trials would impair the national uniformity which the Second Circuit says the Warsaw Convention was intended to create. Lockerbie, 928 F.2d at 1270. If DOHSA strictly applied to preclude jury trials, then international airplane accidents occurring on the high seas would not be tried by a jury while international accidents not occurring on the high seas could be tried before a jury. National uniformity requires that all Warsaw Convention cases be tried before juries.

 The jury trial issue in Warsaw Convention cases was expressly raised and decided by Chief Judge Robinson in this case in In re Korean Air Lines Disaster of September 1, 1983, 704 F. Supp. 1135 (D.D.C. 1988) ("Korean I") and In re Korean Air Lines Disaster of September 1, 1983, et al, 798 F. Supp. 750, (1992) ("Korean II") and is, therefore, the law of the case. See also Yun v. Korean Air Lines, 798 F. Supp. 755 (E.D.N.Y 1992) (jury trial is law of the case and jury trial available under Warsaw Convention even where DOHSA also applies). It was a jury in the District of Columbia that decided that KAL was guilty of "wilful misconduct" and awarded punitive damages. KAL, by not raising the jury trial issue in this Warsaw Convention case on appeal, waived its right to a non-jury trial if it is in fact entitled to trial without a jury. The instant trial sought here on compensatory damages is not a new action. It is the second part of a bifurcated case. The fact that Chief Judge Robinson has certified the jury trial issue to the D.C. Circuit Court of Appeals in the compensatory damages trials now before him in other similar cases is simply irrelevant to whether KAL waived its right to a non-jury trial in this case by not raising the question on appeal.

 In Korean I, as here, plaintiffs alleged their claims at law and did not plead their claims in admiralty according to Fed.R.Civ.P. 9(4). Korean I, 704 F. Supp. at 1151. There, as here, KAL relied primarily upon Higginbotham, 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978) and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986). Chief Judge Robinson ruled, however, that neither case specifically addressed the question of the right to a jury in Warsaw Convention cases and that "the law of the court" in a Warsaw Convention case was not limited to DOHSA. Korean I, 704 F. Supp. at 1152. The latter ruling is also the law of this case.

 Chief Judge Robinson also concluded, by reference to DOHSA's legislative history, that Congress did not intend to eliminate the right to a jury whenever DOHSA also applies to the facts of a case. Id. In Korean II, the court also specifically noted that the Supreme Court, long ago, had approved the hearing of all claims a seaman might have in both law and admiralty in a single trial before a jury. Korean II, 798 F. Supp. 750 (citing Fitzgerald v. United States Lines Co., 374 U.S. 16, 10 L. Ed. 2d 720, 83 S. Ct. 1646 (1963) and Moragne v. State Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970)). In Korean I, the court concluded:

 it cannot be said that jury trials are repugnant to the DOHSA scheme, at least where there are concurrent claims triable by the jury joined with the DOHSA claim

 Korean I, 704 F. Supp. at 1152. Consequently, DOHSA does not preclude jury trial where there is other applicable law -- e.g. the Warsaw Convention, itself.

 The proper question, then, is "whether the law of the court provides for a jury trial in wrongful death actions brought under the Warsaw Convention." Id. at 1153 Chief Judge Robinson answered this question affirmatively. Id. at 1153. See also In re Air Crash Disaster Near Honolulu, Hawaii, 783 F. Supp. 1261, 1265 (N.D. Cal 1992) ("Hawaii II") (claims under Warsaw Convention are triable by jury). It should also be noted that long before Chief Judge Robinson and the Court in Hawaii II made their rulings, a judge of this court determined that when plaintiffs bring Warsaw Convention claims as well as DOHSA claims, the right to a jury trial is not precluded. In re Air Crash Disaster in the Ionian Sea on September 8, 1974 and All Other Related Actions, MDL Docket No. 229, slip op. (S.D.N.Y. Apr. 10, 1979).


 Plaintiffs seek to recover money damages for decedent's conscious pain and suffering prior to death, for decedent's loss of the quality and enjoyment of life, and for decedent's future lost wages. They also seek to recover for their own personal mental anguish and grief, for their own personal suffering due to the loss of decedent's love and affection, for loss of support, lost inheritance, and lost services. Plaintiffs, therefore, claim personal damages, damages for ...

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