Kimberly S. Saavedra the Estate of Masakazu Yamaguchi Makiko Yamaguchi Chisato Yamaguchi, Plaintiffs-Appellees-Cross-Appellants v. Korean Air Lines Company, Ltd. Defendant-Appellant-Cross-Appellee. Kimberly S. Saavedra, as Special Administratrix of the Estate of Makoto Okai, Deceased, and as Personal Representative of Toru Okai and Hitoko Okai, Plaintiff-Appellant-Cross-Appellee v. Korean Air Lines Company, Ltd., Defendant-Appellee-Cross-Appellant

Citations: 93 F.3d 547; 1996 A.M.C. 2113; 96 Cal. Daily Op. Serv. 5743; 96 Daily Journal DAR 9389; 1996 U.S. App. LEXIS 18924Docket: 94-55018

Court: Court of Appeals for the Ninth Circuit; August 2, 1996; Federal Appellate Court

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Two sets of appeals and cross-appeals stem from the September 1, 1983, disaster involving Korean Air Lines (KAL) Flight KE007, which was shot down by Soviet military aircraft. Plaintiff Kimberly Saavedra represents the estates of three victims: Makoto and Yoko Okai and Masakazu Yamaguchi, filing claims for damages against KAL in the Central District of California. Prior to Saavedra's lawsuit, KAL's liability had been established in a trial in the District of Columbia, where a jury found KAL's "willful misconduct" resulted in the passengers' deaths and awarded punitive damages, later vacated by the Court of Appeals while affirming the misconduct finding. Following this resolution, victims and their families sought compensatory damages in various jurisdictions.

In California, Judge Irving Hill oversaw the Yamaguchi trial, while Judge A. Wallace Tashima presided over the Okai trials. Saavedra's claims were based on the Warsaw Convention and the Death on the High Seas Act (DOHSA). The D.C. Circuit's affirmation of willful misconduct led to the removal of the $75,000 damages cap stipulated in Article 25 of the Warsaw Convention.

Judge Hill ruled on recoverable damages under DOHSA and the Warsaw Convention, disallowing damages for loss of society. Although Judge Tashima provided jury instructions on loss of society, he did not enter judgment for the jury's $300,000 finding due to Judge Hill's ruling. The juries in the Okai and Yamaguchi cases awarded various permissible damages, including loss of support, mental anguish, and pre-death pain and suffering, with significant disparities between the two cases. Both judges awarded prejudgment interest to Saavedra based on the 52-week T-Bill rate prior to judgment.

Saavedra appealed for loss of society damages and higher prejudgment interest, while KAL contested the awarded damages' amounts. The Supreme Court case Zicherman v. Korean Air Lines Co. Ltd. established that DOHSA does not permit nonpecuniary damages, influencing the current cases. Subsequently, the parties have conceded that the lower courts correctly denied Saavedra's recovery for loss of society, and Saavedra has abandoned related appeals.

KAL argues that other nonpecuniary damage awards are invalid under Zicherman and questions the evidence supporting pre-death pain and suffering damages. Saavedra contends these damages are redressable under DOHSA due to Korean law and as part of a maritime survival action. The court will first assess Zicherman's impact on nonpecuniary damages before addressing evidence sufficiency for loss of support and the appropriateness of the prejudgment interest rate awarded. Ultimately, the court concludes that Zicherman's reasoning eliminates claims for nonpecuniary damages under American law and will not address foreign law claims since Saavedra opted to pursue the case under the Warsaw Convention without presenting evidence of Korean law.

Saavedra presented adequate evidence to justify the award of loss of support in the Okai case. The district court did not abuse its discretion by awarding prejudgment interest at the 52-week T-Bill rate prior to judgment. In the Zicherman litigation, the Supreme Court's ruling precludes Saavedra from claiming loss of society damages under the Warsaw Convention, similar to the plaintiffs in Zicherman. Although both parties agree on the inapplicability of loss of society damages, they dispute the implications for other claims.

The district court in Zicherman allowed for loss of society damages based on Article 17 of the Warsaw Convention, asserting it encompassed 'actual harm,' which included such damages. It concluded that the Warsaw Convention superseded DOHSA where conflicts arose. Conversely, the Second Circuit acknowledged the availability of loss of society damages under the Warsaw Convention but grounded its decision in general maritime law.

The Supreme Court reversed the Second Circuit's findings, clarifying that 'damage' in Article 17 pertains to legally cognizable harm, determined by domestic law, which in this context was U.S. law. The Court dismissed the Second Circuit's view that general maritime law applied, stating that Article 17 does not allow federal courts to create common law rules to override normal federal procedures. For wrongful death at sea, DOHSA governs, permitting only pecuniary damages, thus excluding loss of society damages.

Due to the retroactive application of the Zicherman ruling, the district court judgments denying loss of society damages are affirmed.

The district court's decision to allow the jury to award damages for survivor's grief under the Warsaw Convention has been deemed incorrect, as clarified by the Supreme Court in Zicherman. The Court highlighted that there is no direct cause of action under the Warsaw Convention; it solely facilitates domestic causes of action. Consequently, Saavedra's claims must adhere to the Death on the High Seas Act (DOHSA), which only permits recovery for pecuniary damages, excluding nonpecuniary damages such as survivor's grief. 

Saavedra argued on appeal that Section 4 of DOHSA allows for recovery under Korean law for nonpecuniary damages. However, defendants contend that Section 4 functions as a choice of law provision, restricting plaintiffs from selecting between U.S. and foreign law. While some courts interpret Section 4 as allowing claims under both U.S. and foreign laws, the Supreme Court's Zicherman decision did not address this specific issue, as the parties had agreed to the application of only U.S. law.

Saavedra's alternate theory regarding Korean law was not preserved for appeal, as she initially agreed with the court's ruling that supported her claim under Korean law but later requested to change the basis of her claim to the Warsaw Convention. Consequently, no evidence regarding Korean law was presented at trial, and Saavedra is barred from introducing this theory on appeal.

Regarding pre-death pain and suffering, Saavedra presented evidence that victims of the KE007 incident survived for eleven to twelve minutes after being hit by missiles, and expert testimony indicated that they likely experienced significant mental and physical suffering during this time due to their awareness of impending death and the effects of altitude decompression.

The district court ruled that Saavedra could assert a survival claim for the decedent's pre-death pain and suffering under Article 17 of the Warsaw Convention. However, the court clarified that the Convention does not provide a substantive cause of action for such damages, as seen in previous rulings, notably in Zicherman. Saavedra must instead utilize the Death on the High Seas Act (DOHSA), which permits recovery only for pecuniary harm and does not allow for pain and suffering damages. While DOHSA allows wrongful death actions for the decedent’s immediate family, pre-death pain and suffering claims are typically part of survival actions. Saavedra's arguments for pain and suffering damages rely on two points: first, the assertion that such damages are recognized under Korean law, which was not presented to the district court or supported by evidence; and second, the claim that general maritime law permits a survival claim for pre-death pain and suffering, even if it’s not available under DOHSA. Citing *Moragne v. States Marine Lines, Inc.*, Saavedra contends that general maritime law can supplement DOHSA. The court acknowledges that previous rulings have allowed such survival actions to include pre-death pain and suffering.

Evich I and Evich II alone could have supported Saavedra's claim for pre-death pain and suffering damages, but subsequent Supreme Court rulings, particularly Mobil Oil Corp. v. Higginbotham and Miles v. Apex Marine Corp., prohibit such claims under the Death on the High Seas Act (DOHSA). In Mobil Oil, the Court determined that DOHSA's restriction against nonpecuniary damages cannot be supplemented by a general maritime wrongful death action. Similarly, in Miles, the Court ruled that a survival action under general maritime law allowing recovery for future earnings is impermissible when the Jones Act already limits such recovery. The Zicherman decision further clarified that the Warsaw Convention does not allow for the development of common law rules that would override federal law, reinforcing the idea that DOHSA cannot be supplemented for nonpecuniary damages, including pain and suffering.

While Zicherman left open the question of pain and suffering damages, it did not suggest a significant distinction between types of nonpecuniary damages disallowed by DOHSA. The Sixth Circuit, in Bickel v. Korean Air Lines, echoed this view, asserting that no distinction exists that would allow for the recovery of survivor's grief damages when loss of society damages are explicitly barred by DOHSA. Consequently, the court declined to permit damages that DOHSA prohibits. 

In a separate matter concerning the loss of support damages awarded to the Okais' parents, KAL argued the district court erred, but the appellate court upheld the jury's verdict, citing substantial evidence in support of the award.

KAL argues that Saavedra failed to provide evidence of the Okais' parents' reasonable expectation of future financial support, referencing case law that requires a demonstration of dependence or expectation of support. This claim is countered by testimony from the Okais' parents, who indicated they anticipated support from their children, supported by a cultural anthropologist's insights on Japanese societal norms. KAL also critiques the method used by Saavedra's economist to calculate future earnings for Makoto Okai, noting the reliance on general college graduate statistics and the omission of personal consumption factors. Despite these critiques, the court emphasizes that the jury's evaluation of the evidence must stand, affirming the jury's award as supported by substantial evidence.

Regarding prejudgment interest, Saavedra contends that the district court improperly set the interest rate at the 52-week T-Bill rate prior to judgment instead of the higher rate just before the KE007 disaster. The court reviews this decision for abuse of discretion and concludes that Saavedra's assertion about the necessity of using the higher rate for adequate compensation is incorrect. The court notes that while the most accurate compensation method would involve a fluctuating rate from the date of injury, neither party proposed this. Instead, Saavedra sought the pre-injury rate, while KAL argued for the pre-judgment rate. The court finds that the district court's choice did not constitute an abuse of discretion and aligns with statutory guidance concerning interest rates.

Ultimately, the court vacates the damages awarded for survivor's grief and pre-death pain and suffering, affirms the loss of support damages, denies loss of society damages, and upholds the prejudgment interest rate set by the district court.