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
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 ...