In re Air Crash Disaster Near Chicago

SWYGERT, Senior Circuit Judge. This diversity case involves the wrongful death actions filed by the survivors of certain victims of the crash near Chicago on May 25, 1979, of a DC-10 aircraft manufactured by defendant McDonnell Douglas Corporation and owned by defendant American Airlines. Many of these actions, either filed in or removed to federal court, were consolidated for pretrial proceedings in the United States District Court for the Northern District of Illinois by an order of the Judicial Panel on Multidistrict Litigation. In re Air Crash Disaster, 476 F. Supp. 445, 449 (J.P.M.D.L. 1979). This interlocutory appeal from the district court's ruling on the parties' motions in limine raises two issues: first, whether a federal court sitting in diversity and applying the Illinois Wrongful Death Act,1 see In re Air Crash Disaster, 644 F.2d 633, 637 (7th Cir. 1981), may admit evidence of the income tax liability the decedent would have incurred on the earnings lost because of premature death, as an aid to accurate computation of the survivor's loss; and second, whether the court may instruct the jury that whatever award it makes will not be subject to federal income tax in the hands of the survivor.2 The district court held that under the principles of Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), it was bound to apply state law, and that Illinois courts would reject both the evidence and the jury instruction. In re Air Crash Disaster, 526 F. Supp. 226 (N.D. Ill. 1981). Because we hold that state and federal law do not differ on the evidence issue, we reverse that portion of the judgment. On the jury instruction issue, we reverse because Erie is inapplicable.