POLITZ, Circuit Judge:
This appeal is another in the growing list of cases arising out of the tragic crash of Pan American World Airways Flight 759 in Kenner, Louisiana, on July 9, 1982. Plaintiffs are the four children
On the appeals and cross-appeals, the parties variously contend that the trial judge erred: (1) by refusing to order a remittitur of the awards for loss of love and affection; (2) by awarding prejudgment interest; (3) in striking the recovery for loss of inheritance; and (4) by failing to recognize that, even as remitted, the award for loss of services and support was tainted by the loss of inheritance evidence and recovery.
1. AWARD FOR LOSS OF LOVE AND AFFECTION.
We recently addressed and resolved the first issue. Evaluating the propriety of a damage award in Caldarera v. Eastern Airlines, Inc. 705 F.2d 778 (5th Cir.1983), in granting a remittitur we awarded $300,000 to a four-year-old child for the loss of love and affection of one parent. We did so after noting our guidelines:
Id. at 784. The $250,000 award per child per parent is within the parameters of this circuit's maximum recovery rule, which translates to "the maximum amount the jury could properly have awarded." Id. See generally, Haley v. Pan American World Airways, 746 F.2d 311 (5th Cir.1984).
We are especially hesitant to disturb an award where, as here, the trial judge has refused to adjust the jury's verdict. "The jury's assessment of damages is even more weighted against appellate reconsideration, especially when ... the trial judge has approved it." Caldarera, 705 F.2d at 783-84. See also Shows v. Jamison Bedding, Inc., 671 F.2d 927 (5th Cir.1982).
2. PREJUDGMENT INTEREST.
Likewise, we recently resolved the second assignment of error adversely to the position of Pan Am. In In re Air Crash Disaster Near New Orleans, Louisiana, 767 F.2d 1151 (5th Cir.1985), we found that Louisiana law, specifically La.R.S. 13:4203, applicable in that diversity case, provided for interest from judicial demand on all claims arising ex delicto. See Schackai v. Tenneco Oil Co., 436 So.2d 729 (La.App.), writ denied, 440 So.2d 759 (La.1983) (interpreting La.R.S. 13:4203 to allow an award of interest on future as well as present damages in an ex delicto action). As an Erie court we are bound to apply the law of Louisiana. There is no merit to appellant's challenge to the award of prejudgment interest.
3. LOSS OF INHERITANCE.
The most serious issue presented by this appeal is whether loss of inheritance is a recoverable item of damage in a Louisiana wrongful death action. La.Civil Code art. 2315. The district court struck the jury's award, finding that the evidence on loss of inheritance was too speculative to support the verdict. We perceive neither error nor abuse of discretion in that action, and affirm.
Erie-bound, we turn to Louisiana law for guidance and find the vintage decision in Eichorn v. New Orleans C.R. Light & Power Co., 114 La. 712, 38 So. 526 (1905). In that case the Louisiana Supreme Court held that loss of inheritance was not recoverable under Louisiana's wrongful death statute, which then distinguished between major and minor children and restricted recovery to spouses and minor children. A major child then had no cause of action. In Eichorn, a widow filed a wrongful death suit as tutrix of the minor children born to her marriage to the decedent. The court declared:
Id. at 530.
In Dowell, Inc. v. Jowers, 166 F.2d 214 (5th Cir.), cert. denied, 334 U.S. 832, 68 S.Ct. 1346, 92 L.Ed. 1759 (1948), a diversity jurisdiction case invoking the Louisiana wrongful death provision, we quoted the foregoing from Eichorn, and opined that under Louisiana law, the decedent's earnings factored into the question of damages only insofar as those earnings would be available to a child during minority. Earnings or estate thereafter accumulated by the decedent were not considered relevant in the quantum determination.
Fifty-five years after the Eichorn decision, the Louisiana Legislature amended La.Civil Code art. 2315 to create, inter
Our research discloses no Louisiana case after the 1960 amendments which addresses the issue whether loss of inheritance is a proper element of damage in a wrongful death action. In a case decided just before the effective date of the amendment, Pennington v. Justiss-Mears Oil Co., 123 So.2d 625, 636 (La.App.1960) (Tate, J.), aff'd as amended, 242 La. 1, 134 So.2d 53 (1961), an intermediate appellate court affirmed the trial court's denial of recovery for loss of inheritance by a widow and minor children, without reference to either art. 2315 or Eichorn, stating that "under all the circumstances of this case, we do not find that the trial court erred in failing to make such an additional award." The Louisiana Supreme Court granted certiorari. Its review dealt only with the widow's recovery for support and reflected the wide diversity of opinion then existing on that court, of a fair recovery for a widow's loss of support in a wrongful death action. In a case decided after the 1960 amendments to art. 2315, Parker v. Smith, 147 So.2d 414 (La.App.1962), the plaintiff's mother had been killed. He specifically sued for "Loss of a reasonably anticipated inheritance." The intermediate appellate court concurred in and quoted with approval the findings of the trial court, including these observations about the loss of inheritance claim: "Without entering into any discussion of whether or not this is a recoverable item of damages, suffice it to say that the record is barren of any evidence whatever on which an award of this type could be made." Id. at 415. In Cheatham v. City of New Orleans, 368 So.2d 146, 150 (La.App.1979), the court of appeals cited Eichorn and made a passing reference, which it actually put in parentheses that a child "is not entitled to his hope of inheritance." In affirming in part and reversing in part, 378 So.2d 369 (La.1979), the Louisiana Supreme Court did not address the Eichorn inheritance issue.
We find neither dispositive ruling nor compelling suggestion from Louisiana's courts whether the holding and rationale of Eichorn survived the 1960 amendments to Civil Code art. 2315. Louisiana's jurists have not said whether Eichorn is alive and well or moribund and languid. If it were necessary, we would make an Erie prediction of the response of the Louisiana Supreme Court as to Eichorn's continued viability. However, on the record before us, that jurisprudential undertaking is not required.
The trial judge granted a judgment n.o.v., excising the jury award for loss of inheritance, after concluding that the evidence in support of that award was too speculative. We agree. Whether such an award is legally appropriate need not be decided for it is manifest that such an award is not factually appropriate in the instant case.
Plaintiffs offered the expert testimony of an economist who made inheritance projections based principally on analysis of the income stream reflected in tax returns for several years immediately prior to the death of Everard Marks, Jr. We find no persuasive evidence of his probable future plans as to work and investments. We find no evidence of his spending habits, commitments to savings plans, asset growth plans or other estate building plans for the children, tax motivated planning, or the probable effect of federal and state estate or inheritance tax which might ultimately have to be paid. In short, we do not find the evidence which might reduce the speculative quality necessarily inherent in the hope or expectation of a future inheritance. Accordingly, attempting to determine what portion of Everard Marks, Jr.'s income might have wended its way into assets which would have formed a part of the inheritance of the children would be mere speculation. It is a well-settled rule that "a damages award cannot stand when the only evidence to support it is speculative or purely conjectural." Haley v. Pan American World Airways, 746 F.2d at 316. Louisiana
4. TAINT OF LOSS OF SUPPORT AWARD.
Pan Am contends that the inheritance issue tainted the award for loss of services and support to the point that even as remitted,
As to the loss of services, the court concluded that the jury's award of $150,000 to each child exceeded the bounds of recovery and that the maximum value which could reasonably be placed on Mary Ann Marks's services was $200 per week, distributed among the plaintiffs. The total after remittitur of $27,953 for loss of services and $425,658 for loss of support, in view of these estimates and the deceased Everard Marks's substantial earnings, was within the acceptable damages range. The judgment of the district court is in all respects AFFIRMED.
The trial court ordered remittitur to the following amounts:
Everard III Stephanie Michelle Kyle Totals ---------------------------------------------------------- Loss of services $ 2,263 $ 3,868 $ 6,275 $ 15,547 $ 27,953 Loss of support 95,299 107,784 100,591 121,984 425,658