IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30085
Summary Calendar
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JEANNE M. KELLY, Individually and
as personal representative of the
estate of Captain James J. Kelly,
and on behalf of her minor child,
James Joseph Kelly, III,
Plaintiff-Appellee,
versus
THE PANAMA CANAL COMMISSION,
Defendant-Appellant.
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Appeal from the United States District Court for
the Eastern District of Louisiana
(CA 92 1733 G)
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August 16, 1995
Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.
PER CURIAM:*
The Panama Canal Commission (the "Commission") appeals a
judgment rendered against the Commission in a wrongful death
action brought by the widow and son of Captain James Kelly.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Captain James Kelly, a United States Army Officer assigned
to duty in the Republic of Panama, was killed while
recreationally sailing when the mast of his catamaran struck a
hanging electrical wire. His widow sued the Commission on behalf
of herself and her son (the "Kellys"). The district court found
the Commission liable for Captain Kelly's death and awarded the
Kellys $10,000 for Captain Kelly's pain and suffering, $150,000
to Jeanne Kelly and $170,000 to James Kelly III for loss of
society and $578,846.66 each to Jeanne and James. On appeal,
this court affirmed the finding of liability, but vacated the
nonpecuniary damage awards and remanded the action with
instructions to "make additional findings to specify the wage
base it used to compute the loss of support item and, if
necessary, conform the award to the evidence." Kelly v. Panama
Canal Commission, 26 F.3d 597 (5th Cir. 1994). This court left
the possibility of reopening the record to take more evidence to
the district court's discretion.
On remand, the district court concluded that it was
unnecessary to reopen the record. The court recomputed the lost
wages component, relying on the report of Edwin C. Schilling III,
the Kellys' expert on military service retirement systems and
financial calculations. The Commission had not objected to the
computations in this report and did not offer an alternative
calculation of Kelly's future earnings. The Commission appeals
the new damage award. The Commission contends that the court
erred in assuming that Captain Kelly would have been promoted
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before retirement and in assuming that the Captain would have had
a post military career. The Commission also objects to the award
because the court did not deduct veteran's benefits accruing to
the Kellys under the Veterans' Benefits Act or deduct payments
made to social security.
The district court relied on the Kellys' expert witness'
report for its assumptions regarding Captain Kelly's future
promotions in the military and post military employment. As the
district court noted, the Commission did not submit any evidence
regarding Captain Kelly's future promotions or post military
employment. The Commission stipulated to the report and did not
cross examine Colonel Schilling. The only objection made by the
Commission to the report was that it assumed a promotion which
had been designated but not yet fully processed. The court's
adoption of Schilling's assumption that this promotion would have
been properly processed and put into effect was not clearly
erroneous.
The district court did not err is accepting Schilling's
expert opinion and the evidence demonstrating Captain Kelly's
excellent credentials in assuming that Kelly would have received
future promotions and would have had a post military career.
The Commission also contends that the award to the Kellys
was incorrect because the court did not deduct veteran's benefits
received by the Kellys. The Commission failed to submit any
evidence to the trial court regarding the amount or character of
the benefits received by the Kellys. The Commission did not
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cross examine Schilling regarding veteran's benefits. Indeed,
the Commission made no formal objection to the failure to deduct
veterans benefits. Pickle v. Int'l Oilfield Divers, 791 F.2d
1237, 1241 (5th Cir. 1986)(holding that the right to deductions
for veteran's benefits waived if not properly raised in the trial
court). In its trial brief, the Commission made a vague
assertion that any recovery on the part of the Kellys would be
redundant because the Commission is a government agency. This
assertion did not adequately raise the issue of accounting for
the Kellys' veteran's benefits.
The Commission also contends that the award was incorrect
because the court did not deduct social security taxes. In
accepting the computations of future earnings of Colonel
Schilling, the court noted that Schilling had allowed for a 6.5%
FICA deduction. This allowance is indicated in Schilling's
report. The Commission points to no evidence contradicting this
clear indication that the court did allow for social security tax
deductions in its award.
AFFIRMED.
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