Case Information
*2 Before HANSEN, [1] Chief Judge, McMILLIAN and BEAM, Circuit Judges.
___________
BEAM, Circuit Judge.
American Airlines appeals the judgment and verdict in favor of Anna Lloyd in this multi-district litigation case. We affirm in part, reverse in part and remand for further proceedings.
I. BACKGROUND
On June 1, 1999, American Airlines flight 1420 crashed on the runway at Little Rock Airport in Little Rock, Arkansas. The pilot and ten passengers died as a result of the accident. Anna Lloyd was a passenger on this flight, returning from a three- week trip to Germany and Austria with a group of college singers from Ouachita Baptist University. This incident spawned several lawsuits, and the Judicial Panel on Multi-district Litigation consolidated the cases and transferred them to the Eastern District of Arkansas. Because Lloyd was an international passenger, she sued American under the Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 876 U.N.T.S. 11 (1934), reprinted in 49 U.S.C. § 40105 note (1994) (the Warsaw Convention). Prior to trial, American moved for leave to file a third-party complaint against the United States for contribution in all cases arising out of the air crash, both domestic and international. The district court granted the motion with regard to the domestic cases, but denied the motion for international cases. The district court ruled that because American signed a series of International Air Transport Association (IATA) *3 intercarrier agreements, [2] it was liable to the passenger in contract, not in tort, and therefore could not be a joint tortfeasor.
At trial, Lloyd's testimony about the accident and her recovery revealed the following facts. Lloyd was seated near the back of the airplane at the time of the crash, and her leg was punctured and scraped by the bolts from an airplane seat. She also suffered traumatic quadriceps tendinitis when other seats fell on her knees. Lloyd was treated for these injuries and smoke inhalation, and released from the hospital on the same night as the crash. Lloyd later saw two doctors concerning her knee injuries and underwent physical therapy for three to four weeks.
Following the accident, Lloyd spent the remainder of the summer with a friend in Texarkana, which is what she had planned to do before the accident, and worked with young children. The next fall, Lloyd returned to Ouachita and continued her studies toward becoming a music teacher. She testified that she was anxiоus and nervous that semester and struggled to get good grades. However, her cumulative grade point average for the 1999 fall semester was higher than her grade point average before the accident. Further, between the time of the accident and trial, Lloyd had traveled on three more trips with the Ouachita Singers. At the time of trial, Lloyd continued to suffer from flashbacks and panic attacks.
*4 Lloyd scheduled an appointment with a psychiatrist, Dr. Harris, in March 2000.
Prior to that appointment, Harris referred Lloyd to a psychological examiner, Dr. VanBlaricom, for testing. VanBlaricom performed psychological assessment tests and provided the results to Harris, who then diagnosed Lloyd as suffering from Post Traumatic Stress Disorder (PTSD) and a major depressive disorder. Harris also served as one of Lloyd's experts at trial. Harris testified that Lloyd's personality traits made her susceptible to PTSD, and that the condition was caused by Lloyd's experiences during the airplane crash. Harris stated that the physical injuries to Lloyd's legs were "a factor" in her PTSD and depression, but later testified that these conditions were not necessarily caused by her knee injuries, stating, "I think it was so horrible on that flight, she thought she was going to die, I think she would have had [PTSD] without the knee injury."
Harris also testified that Lloyd had a physical injury to her brain due to her chronic PTSD. He referred to academic articles on this subject, which state that the hypothalamus and limbic system in the brain of people with PTSD function abnormally. However, Harris did not testify that Lloyd's hyрothalamus and limbic system functioned abnormally, and he also admitted that he did not perform available tests which could have determined if Lloyd suffered from any such abnormalities. Rather, Harris merely stated that Lloyd's brain was not functioning normally as evidenced by lack of sleep and concentration, as well as the flashbacks.
Dr. Charles Fuller, a professor of music at Ouachita, testified on Lloyd's behalf. Fuller testified that Lloyd had a "very low" chance of completing student teaching and becoming a music teacher. Fuller stated that following the accident, Lloyd lacked the ability to focus on schoolwork; however, he also admitted that Lloyd successfully completed full course loads in the two semesters following the accident. Furthermore, Fuller related that while Lloyd had dropped classes in the fall 2000 semester, she did not need a full course load to complete her degree, and that she would be eligible to begin student teaching once she completed the course she was then taking.
American's psychiatric expert, Dr. Eth, examined Lloyd and her medical records and testified that with proper treatment, Lloyd's prognosis was "quite good." Finally, Lloyd's economic expert testified that her maximum economic losses, including future medical expenses and income loss due to her inability to attain a teaching certificate and become a music teacher, were $1,166,875.98.
At the close of the evidence, American made a motion for judgment as a matter
of law to strike the claims for mental injuries,
[3]
and argued that under Eastern Airlines,
Inc. v. Floyd,
The jury returned a $6.5 million verdict [4] in favor of Lloyd. American appeals, and argues that the verdict bears no reasonable relationship to Lloyd's injuries, is *6 grossly excessive as a matter of law, and shocks the conscience. American also argues the district court improperly admitted lay and opinion testimony, and finally, that the district court improperly precluded it from joining the United States as a third-party tortfeasor for contribution. The United States has filed an amicus curiae brief on behalf of American on this final point. [5]
II. STANDARD OF REVIEW
A motion for new trial is apprоpriately granted if the verdict is against the
weight of the evidence and if allowing it to stand would result in a miscarriage of
justice. This ruling is reviewed for an abuse of discretion. Van Steenburgh v. Rival
Co.,
We review a district court's ruling admitting expert witness testimony under
Rule 702 for an abuse of discretion. Bonner v. ISP Techs., Inc.
The proper interpretation of the Warsaw Convention is an issue of law, which
we review
de novo.
Wallace v. Korean Air,
III. DISCUSSION
A. Recovery for Mental Injuries *7 American argues, as indicated, that the verdict was excessive as a matter of law and that the evidence established at trial does not support an award of $6.5 million. American also argues that mental injury damages are not rеcoverable at all under the Warsaw Convention, or in the alternative, that if they are recoverable, they are recoverable only to the extent that they flow from physical injuries. Under either scenario, according to American, a $6.5 million verdict is excessive.
In Floyd, the Court held that mental injuries, unaccompanied by physical
injuries, were not compensable under the Warsaw Convention. The Court expressly
left open the question of whether mental injuries accompanied by physical injuries
were recoverable under the Convention.
The aftermath of Floyd has led to a split of authority on the issue of when, if
ever, to allow recovery for mental injuries. Very few, if any, courts have taken the
primary stance that American advances–that emotional injuries are not recoverable
at all under the Warsaw Convention. See, e.g., Jack v. Trans World Airlines, Inc.,
The more mainstream view, and widely attributed to the decision of the
Northern District of California in Jack, is that recovery for mental injuries is
permitted only to the extent the distress is caused by the рhysical injuries sustained.
The Jack court concluded the "flowing from" approach was best, reasoning that
it would prevent inequities among the passengers, such that "[t]he happenstance of
getting scratched on thе way down the evacuation slide [did] not enable one
passenger to obtain a substantially greater recovery than that of an unscratched co-
passenger who was equally terrified by the plane crash." Id. at 668. Under this
approach, a plaintiff cannot recover for the emotional distress arising from the
accident itself. Id. This approach has been utilized by several lower courts which
have considered the issue. See Alvarez v. American Airlines, Inc., No. 98-Civ.1027,
1999 W.L. 691922, at *5 (S.D.N.Y. Sept. 7, 1999) (airline not liable because the
emotional injuries were not proximately caused by physical injuries suffered during
the accident); Wencelius v. Air France, Inc., No. SACV 95-389,
On the other hand, some courts have permitted full recovery for mental injuries,
provided only that there are some physical injuries as well, even unrelated, which
serve as a threshold to recovery for psychological injuries. See In re Aircrash
Disaster Near Roselawn, Ind. on Oct. 31, 1994,
The district court followed the Roselawn approach and ruled that a physical injury was simply a prerequisite to full recovery for mental injury. Once a physical injury was established, all of Lloyd's mental injuries were deemed compensable. 118 F. Supp. 2d at 921.
We disagree with this approach, and hold that damages for mental injury must proximately flow from physical injuries caused by the accident. This approach is consistent with Floyd , yet provides full compensation for the victim within the bounds established by the Warsaw Convеntion. If the emotional damages "flow from," or are caused by, physical injuries, the physical injuries will not be fully compensated if we do not allow recovery for this aspect of the harm. However, allowing a physical injury, no matter how minor or unrelated, to trigger recovery of any and all post-crash mental injuries would violate both the letter and spirit of Floyd. Thus, the district court's ruling that a showing of any physical injury is sufficient to trigger recovery for all emotional damages, regardless of the causal connection between the two, is reversed.
The district court also ruled, in the alternative, that Lloyd adequately
established a nexus between her physical injuries and her mental injuries sufficient
to justify a $6.5 million verdict.
While we agree that the physical injuries to Lloyd's legs may have caused some
of her emotional damages, we also agree with American's contention that Lloyd's
physical injuries did not "cause[] PTSD sufficient to sustain the principal component
*10
of an award of $6,500,000." Appellant's Brief at 24 n.13. Instead, in accordance with
the "flowing from" rule we announce today, we find that Lloyd can recover only
emotional damages which flow frоm the injuries to her legs and the smoke inhalation.
In this regard, the evidence shows that the bulk of Lloyd's mental injuries did not
result from these physical injuries. First, Lloyd testified in a deposition that her knee
injuries did not cause her PTSD. Second, her expert witness, Dr. Harris, testified that
the experience of being in the crash was the cause of Lloyd's mental injuries. When
asked, on cross-examination, whether Lloyd would have suffered PTSD if she had not
injured her legs, Harris replied, "Yes. I think it was so horrible on that flight, she
thought she was going to die, I think she would have had it without the knee injury."
Finally, the district court's reasoning suggests that it also believed the accident, and
not the physical injuries, caused Lloyd's PTSD, stating, "the knee and calf injuries,
the smoke inhalation, were all part of a terrifying accident, which led to [Lloyd's]
PTSD."
Therеfore, under the Floyd interpretation of the Warsaw Convention, we must draw a line between mental injuries flowing from physical injuries suffered in the crash and mental injuries directly caused by the accident. At the bottom line, Lloyd's evidence at trial was simply not sufficient to establish a $6.5 million connection between her relatively insignificant physical injuries and her very significant PTSD and depression.
Finally, the district court offered a second alternative ruling–that Lloyd's PTSD was actually a physical injury within the meaning of the Warsaw Convention. 118 F. Supp. 2d at 924. In so concluding, the district court credited Dr. Harris's testimony that people with chronic PTSD may have brain dysfunction, meaning that PTSD is both biological and psychological. Id. According to the district court, under this theory, Lloyd suffered a physicаl injury–to her brain. However, there is no contention that Lloyd suffered a head injury of any kind in the crash. Indeed, it is uncontroverted that her only physical injuries as a result of the accident came from leg trauma and smoke inhalation.
We reject this second alternative theory for two reasons. First, as discussed further in Section B, we note there is a complete lack of proof that Lloyd actually suffers from physical changes to her brain as a result of chronic PTSD. Lloyd was not given a magnetic resonance spectroscopy, a positron emission tomography (PET) scan or a single positron emission computed tomography (SPECT) scan, all tests which Dr. Harris testified could have been utilized to show the functioning of Lloyd's brain. Her blood was not tested for elevated levels of cortisol or other hormones, which could also have indicated a dysfunctioning hypothalamus or thyroid. The only evidence that Lloyd's brain actually underwent a physical change was Dr. Harris's otherwise unsupported opinion that it did. Dr. Harris based this opinion on Lloyd's symptoms of disrupted sleep and concentration, and flashbacks. We find that this testimony was not adequate, as a matter of law, to establish a physical change to Lloyd's brain.
Further, if Lloyd elects to proceed to a new trial and is subsequently able to
prove that she does have a physical injury to her brain, we hold that subsequent
physical manifestations of earlier emotional injury are not compensable under the
Warsaw Convention. Two other circuit courts which have considered this issue are
in accord with our decision. See Carey v. United Airlines,
The Terrafranca court considered whether the plaintiff's weight loss was
compensable under the Warsaw Convention as a physical manifestation of mental
injury. The court examined Floyd and concluded that dicta in the final section of the
opinion did not authorize this theory of recovery. The Terrafranca court underscored
the requirement of direct causation between the accident and the physical injury,
*12
stating, "[w]e therefore hold that [plaintiff] must demonstrate direct, concrete, bodily
injury as opposed to mere manifestation of fear or anxiety."
In Carey, the plaintiff's physical manifestations of mental injury consisted of
sleeplessness, nausea, cramps and perspiration. The court reasoned that it would
undermine Floyd to allow recovery for physical manifestations of emotional distress
injuries, stating, "[a]s a practical matter, Floyd 'would thus be converted into an easily
satisfied pleading formality, and a back door would be impermissibly opened to
recovery for purely psychological injuries' so long as plaintiff could allege nausea and
the like."
Floyd draws a clear line between physical injuries and mental injuries. Once recovery is allowed for a physical manifestation of a mental injury, the distinction becomes blurred and under our reading of Floyd, this approach is disallowed. Accordingly, we agree with the reаsoning in Carey and Terrafranca and reverse the district court's second alternative holding that Lloyd's PTSD and purported physical changes to her brain were compensable under the Warsaw Convention.
In sum, our holding today is that emotional damages are recoverable under the Convention to the extent that they are caused by physical injuries suffered in the accident. On the other hand, physical manifestation of mental injuries such as weight loss, sleeplessness, or physical changes in the brain resulting from chronic PTSD are not compensable under the treaty. Finally, the evidence at trial of the physical injuries Lloyd suffered and of the emotional injuries which were caused by those physical injuries, was not sufficient to sustain a $6.5 million verdict.
Clеarly Lloyd suffered compensable physical injuries and it is equally clear that some of her emotional trauma can be fairly traced to those injuries, albeit much less than would account for the $6.5 million award. Although not long in duration, the trial of this case was obviously stressful given Lloyd's emotional condition. Accordingly, we are reluctant to order a new trial without permitting the acceptance of a remittitur in lieu of another adversary proceeding.
An appellate court may condition affirmance upon the plaintiff's acceptance
of a remittitur, and there is a somewhat lengthy history of the practice in this circuit.
See Hale v. Firestone Tire & Rubber Co.,
In light of the amount of time that has passed since the accident in June 1999, and because this was one of several cases on the multi-district litigation docket, instead of ordering a new trial on damages, we offer Lloyd the option of accepting a remittitur for a final judgment of $1.5 million. We find thаt number more in line with the evidence presented at trial, including that from Lloyd's own experts. If Lloyd is not agreeable to a remittitur of this amount, we reverse and remand for a new trial.
B. Evidentiary Rulings
In the event that Lloyd does not accept the remittitur and proceeds to a new trial, we address American's assignments of evidentiary error regarding the testimony of Drs. Harris and Fuller.
1. Dr. Harris American challenges the testimony of Lloyd's expert, Dr. Harris, that Lloyd’s PTSD was actually a biological syndrome, rather than merely a psychological one. Harris testified that "researchers have shown brain dysfunction in people who have chronic PTSD" and based his opinion that Lloyd had brain dysfunction on this outside research. Harris testified that there were functional tests that would show physiologiсal changes in the brain, but admitted that he did not perform any of these tests on Lloyd. At trial, American made a motion to exclude Harris's testimony on brain function and PTSD because he was not a neurosurgeon, because he did not perform the functional tests on Lloyd, and because the theory that PTSD results in physical changes to the brain is not a recognized psychiatric concept. The district court denied the motion. Lloyd argues that American's request for a Daubert hearing was untimely and that American did not preserve the issue for appeal since it failed to renew its objection during Harris's trial testimony.
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
*15
Daubert demands an assessment of whether the expert's methodology has been
tested, and an inquiry into whether the technique has been subjected to peer review
and publication, has a known or knowable rate of error, and has been generally
accepted in the proper scientific community. Bonner,
Of American's three objections to Harris's testimony, only the third–that physical changes to the brain resulting from PTSD is not recognized in the psychiatric community–actually raised a Daubert issue. Unfortunately, the district court does not appear to have considered any of the Daubert factors in addressing this objection. The district court merely noted that Harris was a qualified psychiatrist, and then stated "It's beyond my competence. I don't know whether what he says is true or not or what he says in thе deposition, that there is research material that shows brain changes as a result of this syndrome." Tr. at 328. This inquiry was not adequate to satisfy the district court’s essential gatekeeping role under Daubert. However, Lloyd's point that American requested the Daubert hearing too late in the game is well-taken. During the hearing on the motion, which was held prior to Lloyd's testimony on the second day of trial, the district court noted that in prior cases where Daubert was raised, "we have had extensive depositions taken on the issue and have had hearings. Now, this thing is sprung on me right before the man is to testify. I think that's a little bit late in the day to raise this particular issue." Tr. 328-29. We agree with the district court that when reasonably possible, Daubert issues should be raised prior to trial and that ideally the Daubert "hearing" should not be conducted following a fifteen-minute morning recess shortly before the expert is scheduled to testify.
However, American's second objection to Harris's testimony–that there was an
inadequate nexus shown between the scientific theory and any physical condition in
Lloyd's brain–carries the day. See Weisgram v. Marley Co.,
Lloyd's argument that American failed to object, and therefore preserve error,
during Harris's testimony is unavailing. The lengthy objection, covering over seven
pages of trial transcript, and made roughly one hour before Harris testified, was
sufficient to preserve this issue on appeal. The objection was made at trial, close in
time to when Harris testified, and any further objection during Harris's testimony an
hour later would have been "more in the nature of a formal exception," which is not
necessary, rather than "a timely objection calling the court's attention to a matter it
need cоnsider." Sprynczynatyk v. General Motors Corp.
If this case proceeds to a second trial and if this testimony is deemed relevant
in measuring any recoverable damages, and it may not be given our earlier rulings,
we find that a Daubert hearing should be conducted prior to trial. We direct the
district court to consider the relevant factors set forth in Bonner,
2. Dr. Fuller American also challenges the opinion testimony of Dr. Fuller, one of Lloyd's college professors, who recounted Lloyd's difficulties in school following the accident and also gave an opinion about Lloyd’s chances of becoming a music teacher. Specifically, Fuller stated that Lloyd would have a very low chance of having a successful student teaching experience, which was a requirement for completing her teaching degree. Fuller was the supervisor of music student teachers at Ouachita College.
American alleges that Fuller was not qualified as an expert and that he gave
improper lay opinion testimony. Although the evidence at trial clearly qualified
Fuller to testify as an еxpert, it does not appear that his opinions were offered as those
of an expert witness.
[7]
Instead, Fuller's testimony was based on his personal
knowledge and observations of Lloyd at college both before and after the accident.
This is more in the nature of lay opinion testimony than expert testimony. See
Wactor,
Rule 701 requires that lay witness opinion testimony need only be rationally based on perception and helpful to a determination of a fact in issue. Fed. R. Evid. 701. Personal knowledge or perceptions based on experience is a sufficient foundation for such testimony. Id. at 350. Lay opinion testimony is admissible if an analysis of the events, in the form of an opinion, is necessary. Id. at 351. *18 We find it was within the district court’s considerable discretion to admit the opinions of Fuller. Because of Fuller's personal knowledge of Lloyd and his experience as the supervising instructor of music student teachers at a smaller university in Oklahoma, he was qualified to give an opinion about Lloyd’s chances of successfully completing her student teaching requirements. Furthermore, his perceptions and analysis of Lloyd's school experiences following the accident were likely useful to the trier of fact in determining Lloyd's dаmages. Therefore, whether the proof offered is considered expert testimony or lay opinion, the district court’s decision to receive Fuller’s testimony was correct.
C. Contribution
Our final task is to review the district court's denial of American's motion (now
joined and supported by the United States) for leave to file a third-party complaint for
contribution against the United States and an air traffic controller in this and other
cases on the multi-district litigation docket arising from this incident. Because this
particular motion turns on an interpretation of the Warsaw Convention, we review the
question
de novo
. Wallace,
The district court reasoned that American, as a signatory to the most recent intercarrier agreements, reserved its right to seek indemnity and contribution as prоvided by law. However, under Arkansas law, the district court stated, American had no right to contribution because it was liable to international passengers in contract, and not tort, under the agreements. The district court reasoned that Arkansas law provides no right of contribution when one party is liable in tort (presumably the United States) and the other party is liable in contract (presumably American).
Contrary to the district court's conclusion, international cases under the
Warsaw Convention, even in light of the intercarrier agreements, sound in tort and
not contract. The Convention provides a tort remedy, not one in contract. See In re
Air Disaster at Lockerbie, Scot. on Dec. 21, 1988,
Although not the precise issue before the Court, language in El Al Israel
Airlines, Ltd. v. Tseng,
Next, the intercarrier agreements do not alter the fundamental nature of the tort
remedy in the Warsaw Convention. These agreements arose out of concerns with the
treaty's low liability limits and they serve only to modify these limits; they do not
themselves provide a cause of action. Further, the agreements are actually between
the airline members of the IATA, rather than between airlines and passengers.
Weigand,
Because the Warsaw Convention's tort remedy for damages has not been
altered by the intercarrier agreements, the district court's reasoning that Arkansas law
permits third-party claims in the domestic cases applies in the international cases as
well. We therefore reverse the district court's ruling and direct it to allow American
to file a third-party complaint against the United States. Cf. Piamba Cortes v.
*20
American Airlines, Inc.,
IV. CONCLUSION
For the foregoing reasоns, we conditionally affirm the judgment of the district court, subject to Lloyd's acceptance of a remittitur for judgment in the amount of $1.5 million. [8] We reverse the district court's denial of American's motion for leave to file a third-party complaint against the United States for contribution. Absent Lloyd's acceptance of the remittitur, we reverse and remand for proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable David R. Hansen became Chief Judge of the United States Court of Appeals for the Eighth Circuit on February 1, 2002.
[2] The three intercarrier agreements are related, but separate, agreements which operate in conjunction with each other and, among other things, serve to waive the Warsaw Convention's liability limitation "so that recovery may be determined and awarded by reference to the law of the domicile of the passenger." Tory Weigand, The Modernization of the Warsaw Convention and the New Liability Scheme for Claims Arising Out of International Flight, 84 Mass. L. Rev. 175, 183 (2000). These agreements were drafted by the International Air Transport Association, a trade organization of international air carriers. Blanca I. Rodriguez, Recent Developments in Aviation Liability Law, 66 J. Air L. & Com. 21, 33 n.24 (2000). By 1998, all United States international carriers and most of the major foreign carriers had implemented these agreements. Id.
[3] We recognize that this type of injury is referred to in various cases under differing terminology, i.e., emotional, psychological, psychic injuries, etc. We intend the use of the terms "mental injuries" or "emotiоnal distress" or "emotional damages" to include all such similar ailments.
[4] Although the Warsaw Convention originally limited carrier liability to $8300,
attempts at modification have occurred several times due to dissatisfaction with this
low liability limit. Weigand,
[5] The United States argues that, while it believes it will eventually prevail on the contribution claim, it has a greater interest in the correct interpretation of the Warsaw Convention, which explains its participation as an amici in favor of a position which seems against its interest.
[6] While wе found the Jack court's reasoning persuasive concerning allowing
only mental injuries that flow from the physical injuries, we disagree with its dicta
that damages for physical manifestations of emotional distress could be possibly
recovered.
[7] We also note that the objections at trial were not specifically directed toward his lack of expert qualifications. Instead, counsel only objected to the "form of the question" and the "witness' capabilities" to answer the questions propounded.
[8] Because we conditionally affirm the judgment, Rule 37(a) of the Federal Rules of Appellate Procedure provides that Lloyd may recover post-judgment interest on the remitted amount, $1.5 million, from the date the district court originally entered judgment in this case on October 27, 2000.