concurring in part and dissenting in part:
I agree with Judge Thornberry except for that portion of Part V of his opinion that relates to Higginbotham’s future earnings.
On the res ipsa loquitur point I add the following comments. We do not overrule either Morrison v. LeTourneau, 138 F.2d 339 (CA5, 1943), or Williams v. U. S., 218 F.2d 473 (CA5, 1955). Morrison was a 1943 decision concerning the 1940 crash of a two place “cub” plane. Res ipsa was inapplicable for several reasons. It was unknown whether the defendant’s agent or the other person in the plane was in control as pilot; there were severe winds at the scene; there was no showing that accidents of the type involved could not happen to the most skillful pilots in planes of the finest type and condition. As to the first two elements, they are not present in the instant case. As to the third, in Williams our court was concerned with the 1952 midair explosion of a B-47 jet bomber. We declined to apply res ipsa on the basis that the court had no knowledge, judicial or otherwise, of what would cause a jet plane to explode in midair flight. Williams recognized, however, that each case seeking to invoke res ipsa must stand or fall upon its own facts; that a situation in which the doctrine was previously inapplicable because of insufficient experience or lack of technical knowledge may currently fall within the scope of the rule; and that experience concerning the particular situation may be so uniform and well established that it is not necessary that it be “proved” by extraneous evidence.
Many of the cases concern common carriers. Mobil is not a common carrier, but its use of a fleet of helicopters as substitutes for crew boats, regularly moving men and equipment from shore to offshore drilling sites and back again, makes it something very close to a common carrier insofar as analysis of res ipsa is concerned. The ensuing regularity of operation with few significant incidents represents the kind of change in technology which Williams refers to, and it is a change which need not be adduced by specific proof but which judges in their experience may recognize. Judge Holtzoff discussed the change in technology concept in Smith v. Pennsylvania Central, 76 F.Supp. 940 (D.D.C.1948). He pointed out that the argument that airplane accidents may be- due to mysterious and unknown causes might have been applied to the railroads in their infancy, but that res ipsa was applied to them as early as 1844.
I dissent from the holding, in part V, that it was error for the trial court to calculate Higginbotham’s future earnings by using 5% annual straight line estimated salary increases. Johnson v. Penrod Drilling Co., 510 F.2d 234 (CA5, 1975), was bad enough. Now it is extended. Here, the trial court’s result was not based on an economist’s projection of future economic cycles but upon circumstantial evidence consisting of *437past wage increases (those of Higginbotham and of the successor in his job) from which one may infer that the pattern of a sufficiently long period in the past is more likely than not to be the pattern of the future. A court should be entitled to conclude that a past pattern of earnings increases is of sufficient duration and uniformity that it is a reliable basis for an inference with respect to the future, even though the increases embraced in that pattern may contain cost of living increments. It seems to me that this is what the trial judge did in accepting the past track record and in holding that he was not taking into consideration decreased purchasing power of the dollar. I would, therefore, affirm on this issue.
In innumerable other contexts we accept the events of the past as the basis for an inference as to what the future will hold. Indeed we often insist upon it as the necessary predicate for an opinion respecting the future. Thus, if the plaintiff’s back has hurt for two years since the accident, the doctor is allowed to opine that it will continue to hurt, and we never pause to doubt that this is permissible. We accept, indeed insist upon, projecting life expectancy upon the past record with respect to millions of people, although plaintiff may be (and almost certainly will be) an exception to the projected figure. The examples are endless. Yet we would not permit consideration of evidence that a particular plaintiff had received a $200 per year increase in pay every year for 20 years, unless he could divide it up into “productivity” pay and “economic change pay”. In this single area of projecting future earnings we deny ourselves the best evidence available on the asserted ground that it is not sufficiently reliable, and, in the name of reliability we mandate the artificial conclusion that one will earn the rest of his life what he is earning on the day he is killed or injured. The only thing certain about this is that it is certain to be wrong.