(concurring in part and dissenting in part):
I concur in so much of the majority opinion as affirms Dobbs’ liability to plaintiff Kathleen O’Gee and reverses the dismissal of United’s counterclaim. I emphatically dissent from the reduction of plaintiff’s damages from $170,000 to $85,000, on pain of a new trial.1
Plaintiff at the time of the incident complained of was 23 years old. The jury could have found — and presumably did, in view of the size of the verdict — the following: Before the injury to plaintiff’s back, she was in “very good health” and had never had any back problems. Plaintiff had been “very active” and regularly skied, played tennis, used a small sailboat and enjoyed gardening. As a result of the accident, she was completely bedridden in early 1973 for a while and in severe pain. Despite the use of a back brace at this time, plaintiff was unable to straighten her back and continued to have “a lot of pain.”
In May 1973, plaintiff suffered the distress, both physical and mental, and the risk of a myelogram immediately followed by a laminectomy to remove a herniated disc. After this operation, she had to “learn to walk all over again” and has been in pain every day. She cannot play tennis and has given up attempts to ski again. She took her sailboat out once but found it “too much for [her] back.” She has married since the accident, but has trouble with household chores and does no more gardening.
Despite these medical procedures and a regimen of pain-producing daily exercises, plaintiff still has some numbness, mechanical disability, and recurrent pain for which she takes medication. The onset of her menstrual period increases her discomfort since her back swells and she experiences numbness running down her right leg as far as the calf. Moreover, pregnancy would assuredly aggravate her back condition. She has a 3V2 inch permanent scar on her lower back. Dr. Koven testified that there was evidence of an “ongoing disability or derangement in the lower portion of the back, which was also producing pressure on the nerve root.” He concluded that this condition was permanent, but that it might be relieved by a fusion operation, although such an operation is not always successful. Without a fusion, according to the doctor, plaintiff will continue to have pain. Plaintiff was 28 at the time of trial with a life expectancy of almost 50 years. As a result of this injury, she was out of work a total of 14 months and lost $10,000 in wages.
The jury found that defendant Dobbs was negligent and that its negligence caused plaintiff’s injury. As a result of that negligence, plaintiff has suffered severely in the past and will do so in the future. Her life has been radically and permanently changed. She is no longer a young woman in exuberant good health able to do what she wants. Now, her activities are limited and she has pain every day, and the years ahead are not promising.
In view of the substantial past and future pain and suffering, the loss of wages, the permanent disabilities, and the loss of en*1092joyment of life2 reflected in this record, I find it hard to understand how the majority can say that the $170,000 jury verdict “is irrational or so high as to shock the judicial conscience,” Batchkowsky v. Penn Central Co., 525 F.2d 1121, 1124 (2d Cir. 1975). In Batchkowsky, we reiterated this test for the invocation of appellate remittitur after the trial judge has denied a similar motion. The reluctance to interfere with both the Seventh Amendment guarantee and the experience of the trial bench, which that test reflects,3 is especially relevant here where Judge Weinstein, after viewing all the evidence, stated that he would have sustained a verdict of up to $200,000.4 The jury verdict is still within the boundaries of prior cases, see, e. g., Chiarello v. Domenico Bus Service, Inc., 542 F.2d 883 (2d Cir. 1976).5 Moreover, we must be aware that whether plaintiff’s recovery is $85,000 or $170,000, either sum will be subject to the ravages of inflation, about which the jury was not instructed.6 Under all the circumstances, judicial “shock” at the larger figure but not at the former draws a line whose basis eludes me. In sum, I would affirm the amount of the jury verdict.
. I also do not share the majority’s misgivings regarding Dr. Koven’s testimony, which was clearly admissible for all purposes under Rule 803(4) of the new Federal Rules of Evidence. See Notes of Advisory Committee on Proposed Rules, Note to Paragraph 803(4).
. The federal courts, including this circuit, have long recognized that loss of enjoyment of life, such as inability to play tennis, ski, sail, or fully enjoy homelife activities, is a compensable element of damages. See Lebrecht v. Bethlehem Steel Corp., 402 F.2d 585, 591-92 (2d Cir. 1968); Downie v. United States Lines Co., 359 F.2d 344, 347 n.7 (3d Cir. 1966) (en banc); Hanson v. Reiss Steamship Co., 184 F.Supp. 545, 552 (D.Del.1960).
. Batchkowsky v. Penn Central Co., supra, 525 F.2d at 1124. See also Note, Remittitur Practice in the Federal Courts, 76 Colum.L.Rev. 299, 310-11 (1976), criticizing appellate remitti-tur and pointing out that “[a] jury verdict becomes a tenuous thing when cloistered appellate judges feel free to tamper with it.”
. Judge Weinstein further observed that “[t]he woman has suffered very serious injuries and suffered great pain, and I think the verdict was just.”
. In Chiarello, in an opinion by Judge Lumbard, we sustained a recovery for $669,910, of which $275,548 represented pain and suffering after being discounted for future value, 542 F.2d at 886 n.4. The plaintiff in that case, like plaintiff O’Gee, primarily suffered from a herniated disc. Moreover, the plaintiff in Chiarello only had a 32-year life expectancy whereas the plaintiff here had a 49.9-year life expectancy.
. Whether to have so charged the jury is an increasingly disputed issue. See, e. g., United States v. English, 521 F.2d 63, 73-76 (9th Cir. 1975); see also Note, Future Inflation, Prospective Damages, and the Circuit Courts, 63 Va.L.Rev. 105, 122-23 (1977).