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December 11, 1984


The opinion of the court was delivered by: Bua, District Judge.


Before the Court is defendant's motion for a new trial. For the reasons stated herein, defendant's motion for a new trial will be denied if plaintiff agrees to remit $1,000,000 of the jury's $4,150,000 verdict. Should plaintiff refuse remittur, defendant's motion for a new trial will be granted.


This diversity case was brought by Lora Lux, the widow of Walter Lux and personal representative of his estate, under the Arizona Wrongful Death Act, A.R.S. § 12-613.*fn1 On May 25, 1979, Walter Lux was killed while piloting American Airlines Flight # 191, which crashed shortly after takeoff at Chicago's O'Hare International Airport. The sole defendant in this case is the McDonnell Douglas Corporation, manufacturer of the American Airlines' DC-10 aircraft. Since McDonnell Douglas agreed to not contest liability, the case was tried to the jury on the issue of compensatory damages only. On February 28, 1984, the jury returned a verdict in favor of plaintiff and against defendant and assessed damages in the amount of $4,150,000. The jury allocated $4,000,000 in damages to Lora Lux and $150,000 in damages to Michael Lux, Walter Lux' son.

In its motion for a new trial pursuant to Fed.R.Civ.P. 59, McDonnell Douglas advances several reasons this Court should grant a new trial. First, defendant argues that plaintiff's argument to the jury was improper and prejudicial; second, defendant argues that the Court erred when it refused to instruct the jury that its award was not subject to taxation; third, defendant argues that the Court erred by excluding evidence of the effect of taxation on decedent's income; fourth, defendant argues that evidence relating to insurance proceeds was improperly excluded from the jury; fifth, defendant argues that the jury was not properly instructed; sixth, defendant argues that the Court erred by admitting twelve irrelevant and cumulative photographs of Walter Lux and his family; and finally, defendant argues that the evidence is insufficient to support a verdict of $4.15 million dollars.

On the date of the accident, Walter Lux was 52 years old; Lora Lux was 49 years old, and their only son, Michael, was 22 years old. Walter and Lora Lux had been married 24 years. Walter Lux' income from American Airlines as a captain pilot was $78,954 in 1978. In addition to his annual income, Walter Lux enjoyed various fringe benefits from his employment with American Airlines. These benefits included life insurance, medical and dental insurance, and pension benefits. At trial, plaintiff claimed a total of $1,589,930 in economic loss, of which approximately $1,000,000 represented lost income. Defendant, on the other hand, argued that any amount in excess of $1,000,000 for economic loss would be unfair and excessive. See Tr. 525.

Under Arizona law, Lora Lux' non-economic loss includes her "loss of love, affection, companionship, consortium, and her personal anguish, sorrow, suffering and pain, and shock which resulted from her husband's death." Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599, 611 (1975). Lora Lux testified as follows regarding her noneconomic damages.

Walter and Lora Lux had been married 24 years at the time of the accident. Walter was killed six months before their 25th anniversary. The Luxes had bought a summer home in Wisconsin and later remodeled the home into a year-round residence. Walter performed all of the electrical and plumbing work on the house. The Lux family lived year-round in the Wisconsin residence from 1965 until 1972. In 1972, they moved to Phoenix, Arizona. After 1972, the Luxes continued to use the Wisconsin home for vacations and holidays.

On the morning of Walter's death, Lora accompanied her husband to work at the airport in Phoenix. Walter was scheduled to pilot a plane from Phoenix to Chicago. Lora understood that Walter would fly to Chicago and then travel to the Wisconsin home to spend the Memorial Day weekend putting up wallpaper and carpeting the house. At about 1:00 p.m. that afternoon, Lora received a call at work from Walter's sister. Walter's sister informed Lora that a plane had crashed in Chicago. Lora responded that Walter was safe because he was on his way to the Wisconsin home. Unknown to Lora, however, Walter had been reassigned at the last minute to pilot Flight # 191 from Chicago to Los Angeles. Minutes after Lora spoke with Walter's sister, a friend called and told Lora that American Airlines had just informed her that Walter was the pilot on the airline which crashed. Lora immediately went home and was met by a sales representative of American Airlines.

At the house, Lora took a tranquilizer and watched reports of the crash on the television. Michael soon arrived and the sales representative then drove Lora and Michael to the Phoenix airport. Michael and Lora flew to Chicago, arriving at 6:30 a.m. on Saturday. They were met by the chief pilot for American Airlines and immediately they were introduced to the pilot originally scheduled to pilot Flight # 191. Later that morning, Lora and Michael traveled to their Wisconsin home.

In Wisconsin, Lora made plans for a memorial service for Walter because she understood that Walter's body had been burned in the crash. The evening before the scheduled service, however, the funeral director informed Lora that American Airlines had sent Walter's remains for burial. Upon such short notice, Lora decided to have Walter's remains cremated.

About one month after the funeral, Lora returned to her work in Phoenix as a realtor. During this period Lora became depressed and began grinding her teeth. Lora's dentist first prescribed braces for her teeth and later surgery was required. After the surgery, however, Lora continued to grind her teeth. Lora was also treated by a psychiatrist for about one year. The psychiatrist prescribed tranquilizers in an effort to control Lora's depression.

On one occasion after the accident, Lora was flying from Chicago to Phoenix and was seated next to the Chicago fireman who first arrived at the scene of the crash. Not knowing Lora's identity, the fireman mentioned that he was the first fireman at the crash and that he "found the captain's body." On several occasions since the accident, Lora has been reminded of the crash by news reports and conversations with friends and acquaintances.

Since the accident, Lora has incurred about $13,000 in dental expenses and $1,900 in psychiatric expenses. She also has incurred the expense of hiring outside ...

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