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In re September 11 Litigation

October 17, 2007


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.


Paul Wesley Ambrose was 32 years old when he died, a victim of the terrorists of 9/11. He had boarded American Airlines Flight 77 at John Foster Dulles Airport the morning of September 11, 2001, expecting to fly to Los Angeles. The plane never reached its destination. Five terrorists, employing weapons smuggled aboard, hijacked the airplane, turned it around and flew it into the Pentagon, killing themselves, 58 passengers, 6 crew members and many civilians and military personnel in the Pentagon. The 9/11 Commission Report (2004), § 1.1, at 8-10.

Plaintiffs Sharon and Dr. Kenneth Ambrose, the parents of Paul Wesley Ambrose, brought this wrongful death action, seeking damages for the loss of their son. As was their right, they chose to sue in court, rather than seeking compensation from the Victim Compensation Fund. See Air Transportation Safety and System Stabilization Act, ("ATSSA", or "the Act"), § 405, 49 U.S.C. § 40101; In re September 11 Litig., 280 F. Supp. 2d 279 (S.D.N.Y. 2003). Pursuant to the ATSSA, the United States District Court for the Southern District of New York has exclusive jurisdiction over all actions arising from, or relating to, the terrorist-related aircraft crashes of September 11, 2001. ATSSA, § 408(b).

Under the ATSSA, the law of the State where the aircraft crashed provides the rule for decision, for both conflicts of law and substantive purposes, except to the extent that the law of the State conflicts with the Act or other federal law. Id., at § 408(b)(2); In re September 11 Litig., 494 F. Supp. 2d 232, 237 (S.D.N.Y. 2007). The Pentagon is in Virginia and, as the parties agree, Virginia law governs. Since my rulings on this motion apply to a trial in federal court, the Federal Rules of Evidence also govern. Fed. R. Evid. 101.

The Facts of the Case

At the time of his death, Paul Wesley Ambrose had graduated from medical school, completed a residency at Dartmouth Medical School in the Department of Community and Family Medicine, and had received a Masters in Public Health from Harvard University. (Pl. Br. at 5). He was planning a career in preventative medicine. Although he had not yet begun to work for income and had no history of earnings, his background, intelligence, ambition and credentials suggested that he would have a promising career. He was engaged to be married, hoped to have a family, and left no dependents. (Def. Br. at 5).

Both of Paul Ambrose's parents enjoyed successful careers: at the time of Paul's death, Kenneth Ambrose was a tenured professor of Sociology/Anthropology at Marshall University, while Sharon Ambrose was the director at nursing at St. Mary's Hospital in Huntington, West Virginia. Kenneth and Sharon Ambrose owned two homes and lived comfortably. Now retired, the Ambroses receive significant retirement benefits, including health care coverage. There was no history of Paul Ambrose having contributed financially to the household, and the Plaintiffs could not articulate any expectation of such contribution in depositions.

The Procedural Setting

The Ambrose case was identified by counsel for a damages-only trial. 21 MC 97 Order dated 9/25/07. The trial is to begin November 5, 2007. The parties have been heavily engaged in depositions and other discovery in anticipation of the trial. Their preparations have precipitated sharp disagreements concerning the admissibility of several categories of evidence that plaintiffs have identified. It is from these disagreements that the instant motion arises.

Defendants move in limine seeking to exclude evidence and testimony concerning: (1) Paul Ambrose's future earning capacity; (2) the events in boarding, and aboard Flight 77 and the other hijacked flights: for example, pictures of hijackers passing through the security checkpoint in Dulles Airport; the cockpit recorder of United Airlines Flight 93 before it crashed into the field outside Shanksville, Pennsylvania; and the testimony of friends and relatives concerning their conversations with the passengers and crew of American Airlines Flight 77; (3) the experiences of individuals located within the Pentagon on September 11, 2001; and (4) other aspects of the 9/11 experience, including facts learned at the Moussaoui trial and testimony given by the plaintiffs at that trial.*fn1

I heard argument on these issues on October 11, 2007, and ruled extemporaneously, mostly to exclude the evidence that plaintiffs propose to offer. This opinion expands and restates the reasoning expressed at the argument.

The Relevant Statutes and Rules

Virginia law allows a jury to award damages in a wrongful death action for "[s]orrow, mental anguish, and solace which may include the loss of society, companionship, comfort, guidance, kindly offers and advice of the decedent" and "[c]ompensation for reasonably expected loss of income of the decedent". Va. Code. Ann. § 8.01-52. Competent expert testimony is admissible to aid in proving compensation for reasonably expected loss. Id.

Federal Rule of Evidence 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence". Federal Rule of Evidence 403 states that relevant evidence may be excluded (despite its relevance) where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or ...

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