*3 affirm. 2106. See 28 § U.S.C. MERRITT, Before WEICK and Circuit long-time employ- a Wallace Clissold was Judges, CECIL, and Judge. Senior Circuit Company ee when on Au- Kellogg of the gust 1500-pound steel bulkhead 1971 a WEICK, Judge. Circuit by the door in a boxcar owned railway The defendant appealed has from a judg- defendant, a He suffered bro- fell on him. ment favor plaintiffs of the in this per- ankle, nose, a broken foot. ken a and broken injury sonal diversity governed action hospitalized for one remained Michigan law. month, totally another disabled for and was complaint was filed the District five returned to work months. He However, Court on November the March, 1972, eventually returned and was case was not reached for trial until October which he job to the foreman’s 6,1976. The long delay reason for this does however, unable, the accident. He was appear not to be to any attributable activi- perform previ- that he had all of the duties parties, ties as the docket entries ously accomplish, and he was been able to only show complaint and provided cart which im- with a three-wheel the answer. proved job. mobility on

The ease was days by tried for three years surgery Two accident was after the District Court jury. without a At the end again feet. and required on Clissold’s One day second the Court announced hospitalized one-half later he from the bench opinion which, its on the issue of treatment of an ulcer was con- liability, deciding plaintiffs. tended, in favor of the injury. Medical resulted from day At end of permanent- the District third evidence showed that Clissold ly possible Court It is partially from the bench its also disabled. announced foot, damages may develop right he in his awarded to Wallace C. arthritis expected regain swelling ankles, and he is not full mobili- and reduced ty. Based on this evidence the mobility. In view of these facts we do Court concluded that Clissold would not be addition, shocking. find this award job, able to continue his foreman’s and that Michigan approved courts have the use of expect job most he could was a staff formula, per diem which variation of pay reduced and overtime. was used the District Court here. See Yates, supra; Pippen v. Denison Div. Abex The District following Court made the Corp., Mich.App. specific awards: suffering,

As to future we find the grossly award excessive. The Dis trict Court based its award on the same *4 $5,000 per rate of annum as was used to pretrial arrive at the pain award for and suffering. This award was based the on likely fact that will continue to pain mobility suffer and loss of for the rest shown, however, of his life. It was not that necessarily he will suffer the same level of pain, require or that he will additional hos pitalization and in the future as he surgery has past. in the possibili At most there is a ty develop that Clissold will ar traumatic thritis at some future time as a result of the accident. yet happened It has not and no means reasonable medical In appeal the defendant does not certainty. On these facts the Court acted 1, 4, contest items and 8: erroneously awarding the same annual (1) suffering Pain and for first six months $25,000. pain suffering amount for and in the future (4) Wage loss to trial 11,556. during (8) Medical and pain suffering allowed for and costs hospital 3,869. the period difficult of the few first Suffering Pain and following the accident.1 The defendant challenges as exces sive the pain awards for suffering and for The District Court made addi one period from six following months respect tional error to its award for accident ($22,500), until trial and for future pain suffering. Michigan and Under law pain suffering ($68,390). and Under Michi damages all future must be reduced to their gan law damages are excessive and unlaw value as of the Bru date of ful they when judicial shock the conscience. Inst, no v. Technology, Detroit Mich. 51 Wenk, Yates v. 311, 319, 363 Mich. 109 593, App. 1, 745, n. 599-600 & 215 N.W.2d 828, N.W.2d 831 (1974); 749 Fiting, & n. 1 v. see Currie 375 440, 453-54, pain

For suffering and Mich. 134 N.W.2d 616 peri for the od of four trial, (1965) years prior (plurality opinion). Although and one-half per year. Court awarded Bruno decision involved the breach of an During this employment contract, time Wallace liability, Clissold was hos and tort pitalized surgery for additional expressed broadly. on his feet the Court the rule Ad ulcer; a bleeding evidence ditionally, further we believe that this is the correct showed that he suffered pain approach considerable present in the case because the

1. Plaintiffs’ reliance Pippen, supra, misplaced. Pippen, unlike this case, the plain- tiff suffered total loss of a limb. statute, interest-on-judgment damages law Under 600.6013, 27A.60132, consequences injury of an are § M.C.L.A. recov M.S.A. § there only degree erable where is “such a mandates that interest run from the date of probability consequences such as to complaint.3 applica- The certainty amount reasonable that prevents tion of Bruno rule unwar- thus [a] they City . . .” will result Kellom v. ranted double recoveries. Ecorse, 303, 308, Mich. Applying rules, noting (1951), (quoting Brininstool Court, other error of the we believe 172, 180, Rys., Michigan United permissible maximum (1909); accord, N.W. Gilson suffering under the facts Bronkhorst, *, 154 n. (including case the award for the first six n. We believe months) $70,445. This accounts the District Court’s award of lost fu- necessary discounting to the date wages aspects ture in certain based on interest, complaint, as well as speculation so that undue loss was not up entry judgment by time of the certainty.” in all “a reasonable this Court. primary basis for the District Court’s award was its conclusion that Clissold Wages Lost would be to continue his foreman’s unable job. The defendant does time of trial not contest Yet at the Clissold was in past award for the wages, complains position but fact the same serving in foreman’s *5 only about the award for the loss that he to the accident. It prior held is true earning capacity. In arriving at its award that made Kellogg had certain accommoda- $143,684.83 (valued job requirements as of date of tions in the to enable Clis- judgment), compared It is Court sold to continue. also true that Kel- earning another, Clissold’s future as a capacity logg seeking fore- had been more suit- man, job, able, old position that of a staff em- for It by Clissold. was no job ployee, the certain, however, to which the reasonably Court assumed means that Clissold would actually be posi- transferred but be demoted to a staff would Indeed, had not been so solely disability. transferred. The Court tion because of his assumed that history receiving jobs Clissold’s foremen their several other had lost wage 7.44% annual positions increases which he had transferred to and had been staff accident, received since the Kellogg would continue at because shut lower salaries down future, employee and that operations, as a one of its and not because of staff paid any physical Clissold would employees’ be than he disabilities. While 25% less paid be likely, probable, would as a foreman. it was indeed that Clis- provides: prevailing party judg- 2. The statute than the vorable to the ment, money interest shall be allowed be- judgment. then no Interest on Sec. 6013. money yond any judg- Interest shall be the written offer of settlement allowed on date action, ment recovered in a civil interest such is made. filing be to complaint calculated from the date previously that federal courts 3. We year per at the rate of unless [6%] diversity sitting Michigan required cases are judgment is rendered instru- on a written apply particular interest-on-judgment having higher ment interest rate of Lynch v. Electro Refractories & Abra statute. computed which case interest at the shall be (6th 1969) (per Corp., F.2d 363 Cir. sives specified rate in the such rate instrument if curiam). holding stemmed our earli This from legal the time the was instrument v, er in Glens Falls Ins. Co. Danville decision executed. In no case shall the rate exceed 1964), Motors, Inc., F.2d per year judgment after the date is en- 7% although requires post- that 28 U.S.C. § judge, tered. if a discretion of the interest, judgment prejudgment the matter of bona fide written offer of in a civil settlement cases, diversity governed, in interest is state party action based on tort is made Co., against subsequently law. See Klaxon Co. v. Stentor U.S. whom the (1941) 85 L.Ed. 61 S.Ct. rendered and the offer of settlement is sub- stantially substantially identical or more fa- plaint would some sold suffer loss of future until the opinion, earn- we ings, it was not a certainty reasonable permissible believe that the maximum immediately Clissold would be demoted wages, to a all including wages lost position, staff trial, $83,398.41. prior Court as- lost sumed. For similar reasons the Court’s as-

sumption that Clissold would suffer an im- Lost Overtime mediate, permanent wages 25% reduction in The District Court made substan inwas error. As of the trial date four $13,142 tial awards for lost overtime: years after the accident again Clissold was trial, prior overtime lost performing his duties as foreman and had past lost future overtime. The award for yet been demoted or transferred. supported overtime lost is in the record and We quarrel have no with the District except is not in error that the Court failed wage Court’s inclusion of an annual in to discount the award to reflect its value as factor, including crease living cost of ad complaint. of the date of the justments, because we believe that Michi The award for lost future overtime gan permit courts would such inclusions. First, however, presents greater problems. McClain, See Routsaw v. agree disability likely we that Clissold’s will N.W.2d 123 The factor used was overtime, cause a reduction in and we note based on past experience Clissold’s and is consistently to the accident he supported in the record. opportunities availed himself of to work erred, however, The Court both in its proof supports overtime. The also the in reducing method of present the loss to val- Kellogg ference that will continue to offer ue, and in failing to reduce it to the value problem overtime in the future. The as of the date again that here the District Court assumed The proper Bruno, method was stated in necessarily that Clissold would be transfer supra, 600-01, 51 Mich.App. at job red a staff where there would be no 745, 749, as follows: opportunities. overtime This was of course (1) On the past experience, basis of *6 possible reasonably but not certain. Fur project anticipated compensa- level of ther, that ex the District Court assumed persons tion similarly situated to the [for cept for the would have accident Clissold .; plaintiff] . . continued to work the same amount of (2) past On the basis experience, .overtime, retirement, age and until as project the anticipated earnings plain- he age had worked at 40. We believe that premised tiff good-faith attempts on unlikely. this is The Court also overlooked plaintiff’s part employment to secure Kellogg requires the fact that workers to profession; chosen take some of their earned overtime com as (3) Subtract anticipated earnings of pensatory time off rather than as overtime years for each of the from pay. Finally, we note that Court used anticipated salary he would have received calculation, an one incorrect method of in the corresponding year; employed which is similar to that which was (4) Reduce the year difference for each computing wages. The cor lost future to its worth as of the date of the Bruno, supra. rect method is stated in complaint; noted, Considering the and also errors (5) Take the sum of properly miti- accounting required discounting gated and figures. reduced entry judg- interest to the date of the

Taking into account the court, errors we ment of this we believe that again noted and accounting for inter permissible maximum award for lost over- est from the time, time of the filing future, $119,312.50.4 of the com- past and argued by payments. The defendant has that the awards for duced tax No income wages lost future Michigan appellate and overtime should be re- decision has been found Corp.,

Loss of Jiffee Consortium Chemical 591 F.2d 366-67 2106; 1978); 6A U.S.C. § The District Court awarded 1) Moore’s Federal Practice at 59- 59.05[3] $30,100 Ingebord Clissold for loss of consor 68. Where remittiturs or reductions tium. To establish a loss of consortium clearly showing there must be a erroneous awards of excessive dam- of harm to the relationship marital caused injury ages appellate they are an court ordered Jones, Washington Wallace Clissold. air, regarded are not as taken out of thin as There the dissent seems indicate. showing must be a of harm to the incidents relationship, including society, com MERRITT, Judge, dissenting. Circuit services, panionship, Id., and affection. Montgomery respectfully I Stephan, opin- dissent. The Court’s ion, In proof though purportedly this case the based on established that Wallace law, Clissold had be pulls arbitrary figures from thin air as come irritable on occasions and that he was the maximum allowable award for each perform unable to satisfactorily certain damages. figures item of These reflect nei- household duties. While we believe that proof ther the in the record nor the liberali- this evidence support was sufficient an ty damage courts towards consortium, award for loss of we also be Although awards. I believe the District lieve that the amount of the award was Court erred in several and that the excessive, shocking, or on these facts. See damages result, high awarded were too as a Wenk, Yates v. supra. I would the case remand to the District addition, the Court failed to make the Court for correction of the errors and re- required Bruno, discounting supra. under computation of the award. In our permissible the maximum consortium, award for loss of after dis- Suffering I. Future Pain and counting and interest to the date of the $68,- $15,050. opinion, The Court claims that the award of suffering 390 for future is exces of the District Court less in the sive because Clissold will suffer modified follows: during future than the 41/2 277,024.91 To Wallace Clissold $ Judge the trial. The District awarded dam Ingebord 15,050.00 To $ ages per year. at the rate of same These amounts hospi- include the award pain, Clissold will some continue to have tal expenses and medical and reflect immobility and awkwardness. His recrea discounting appropriate amounts to the tion will be limited. The District Court date Although the de- likely found that it is that he will have *7 fendant did not raise point every in arthritis. appropriate item, we view the District improper Court’s discounting plain error. Michigan courts have seldom reduced The amounts before stated also reflect the damage suffering.1 pain awards for and addition of entry interest to the date of the Denison, Recently, Pippen in v. 66 Mich. judgment of of this Court. 664, (1976), App. 239 N.W.2d 704 the Michi- $1,250,000 modified, gan Appeals

As Court a approved District Court is Drayton damage affirmed. See v. 67-year-old award to a man for the 754, supports (1955); Day Toyer, which this view. Where state law is N.W.2d 220 v. adjust- 189, 74, (1954); silent we have refused to make such an v. 67 N.W.2d Torma ment, 468, Co., at least at Montgomery middle income levels. Kalavi- 336 Mich. Ward & ty States, 809, v. House, United 584 F.2d (1953); 336 Mich. Vink v. 1978) (citing cases). 292, (1953); Denny Garavag 57 N.W.2d 887 v. lia, 333 Mich. 52 N.W.2d 521 Rolston, Phillips 376 Mich. (1965); Hill, N.W.2d 158 Bennett v. 342 Mich. losses, $1,100,000 Approximately plaintiff

loss er for such future must of his arm. pain (1) suffering, prove award was for and or that he has a loss of suffered $80,000 per year plaintiff’s (2) earning capacity life ex- and mone- pectancy. (Gillis, 239 N.W.2d at 710-13 J. tary the future loss. The Court amount of dissenting). Although the that, loss of an arm is correctly prove states to the first ele- injuries more by extreme than the ment, suffered capacity, plaintiff must loss of Clissold, pain suffering and degree the loss is of “such a show Pippen larger. Pippen was much The . to probability as to amount [a] liberality case to me the demonstrates certainty.” City reasonable Kellom given courts and the deference to Ecorse, setting pain trial courts in awards for and apparently concluded Court suffering. plaintiff met or it had this burden would not have affirmed the award as mod- In view Michigan’s of this attitude of ified. courts, I do not that an believe award of $5,000 per year pain for Clissold’s future Regarding proof, the second element of i. and suffering is excessive. The Court’s loss, e. the actual amount of Court opinion that the award is excessive and that the District Court’s award was “based judicial shocks recog- conscience fails to speculation on undue so that the loss was nize that it is the conscience of the Michi- certainty’.” not in all ‘a reasonable gan appellate courts to which we must look. By requiring the actual of future amount Court, however, The District by did err proven certainty, loss to be to a reasonable reducing the award to its value at the time majority misconstrued law. complaint Accordingly, filed.2 I capacity proven Once the loss of has been would vacate the award for future certainty, Michigan a reasonable courts suffering and remand for correction of this historically have been regarding liberal error. calculation of the actual award. This liber-

ality hypothetical specula- reflects the projections. tive nature of all future As Wages II. Lost Future Chandler, stated Allison v. 11 Mich. 542 The Court arbitrarily reduces the District (1863): Court’s wage award for loss of future earn- Since, case, from the nature of the ing capacity $143,684.83 $83,348.41. from damages cannot be with cer- estimated Although the Court cites Bruno v. Detroit tainty, giving by and there is a risk of Institute Technology, Mich.App. less, one course of trial the other (1974), proc- indicate the compensation course more than a fair —to ess which damages for loss of future say nothing justice not sound —does earning capacity Michigan, are calculated policy require that the risk should be the Court attempt apply does not Bruno upon wrong thrown doer instead of Rather, to the facts of this case. the Court injured party? $83,398.41 decrees that plaintiff is all that entitled to. figure This also came from majority ignored Id. at 554-563 The Alli- thin air. upon son and cast the risk of uncertainty.

Furthermore, the Court has held the *8 proof proof to a recovery wage burden of for The of future loss was not too of lost earning capacity future speculative more strin- and the Court was not District gent Michigan than requires. law The clearly wrong estimating To recov- the loss. 490, 293, (1958); 2. Coger See note 4 infra. 297-98 v. Co., 113, Mich.App. Mackinaw 210 Prod. 48 Rolston, 124, Phillips supra 3. See also N.W.2d note 137 130-31 161; Buskirk, N.W.2d at Schankin v. case, evidence shows that could be Bruno Clissold’s loss formula to this it is evident great per years, as as 25 cent 21 1/2 Judge’s figure for that the District overstates adjusted by a per 7.44 cent cost of present wage annual the value of Clissold’s future living Judge’s have, increase. The appendix award loss. In the to this dissent I was “within range proof.” the of illustration, of purposes calculated Co., v. New Pierce York present Central Railroad I ar- value the Bruno method. 1969). 409 F.2d figure $130,505.55, $13,- There rived at a of some fore, I would affirm the substance of the Judge 000 less than the District awarded. loss wage earning of future ca B. Reduction to date of would, pacity. however, I re- remand for law —Michigan requires also that future computation of the award after the correc damage awards be reduced to their value as the following tion of two errors: complaint It date was filed.4 present

A. appears Method of reduction val- to that the District Court reduced process by ue.—The which to only award its value as of the of date $143,684.83 at figure judgment. Court arrived of as value present of Clissold’s of loss future

wage earning capacity is unclear. somewhat III. Lost Overtime It apparent that the District Court based this agree I Court’s its calculations on a determination damages to the extent element of “average” weekly wage Clissold’s future proof of loss points where the out instances year period loss over the 21V2 would amount would, I was unclear. future overtime $247.87. lower court then reduced however, the District the issue to remand “average” this weekly present loss value out again pulling figure Court instead as of the date of by a formula not of the air. explained opinion, its apparently cal- Loss of Consortium IV. present culated value of aver- Clissold’s age wage annual future Mrs. by multiplying loss the award I do not believe that figure by $143,- 2IV2 to arrive for loss consortium as the present 684.83 have value of Clissold’s courts grossly excessive. wage losses. loss reduce reluctance to same displayed the regard- they awards5 consortium This method of calculating present value view suffering.6 pain and ing claims for proper not under law. Accord- I do not believe approach, liberal case, ing to the supra, proper Bruno award would find the Michigan court that a (i) compute method is to loss for actual I affirm Accordingly, would excessive. year future, (ii) each in the reduce loss dam- item of for this award District Court’s value, year each future to present ages. (iii) take sum of properly reduced Appendix figures. 215 N.W.2d at 749. Applying the follow. Bruno, supra, course, Schefke, Mich.App.

4. Hixson v. 215 N.W.2d at 749. Of sive. See also (1972) ($5,000 once an award is reduced to as of the not value N.W.2d 758 complaint, may Barrett, Mich.App. date excessive); interest be added. then Asmus v. Mich.Comp.Laws (1971) ($5,400 Ann. § 600.6013 exces- not sive). Denison, Pippen Mich.App. (1976), supra, discussed held that supra accompanying text. 6. See note $500,000 for loss of consortium was exces-

APPENDIX