text:
PSHS graduate provides therapy with music
PARKERSBURG – A former Parkersburg resident is glad to have brought her start-up business to her home state of West Virginia.
Amy Rodgers Smith graduated from Parkersburg South High School in 2002 and attended Ohio University where she graduated in 2007 with a Bachelor's degree in music therapy. She and her husband, Justin, moved to several states, including Texas, but were drawn to return to the Mountain State.
Smith started her own business where she uses her studies of music therapy.
On A Better Note Music Therapy is a music therapy private practice (LLC) serving clients and agencies from Morgantown to Parkersburg. Smith, who lives in Morgantown, said her practice provides board-certified music therapy services to individuals and groups.
"We are happy to be home in West Virginia," Smith said of she and her husband. "(Music therapy) is a new thing for the state – which is why I'm excited to be here and give clients the opportunity for this service."
Smith said musical therapy is about an intervention, which can include singing, relaxation, playing instruments, lyric analysis, reading and talking aloud about what a singer/songwriter was trying to say with a particular song.
She said those who can benefit from the practice are children, adults and senior citizens.
She started her own company where she is the founder and sole employee.
While in high school, Smith thought she wanted to study psychology but always had a passion for music in her heart.
Smith will be bringing her company to the Parkersburg area in October.
"I grew up loving music," Smith said of her music history. "I was in a Christmas concert at Parkersburg South and I thought 'how am I going to go everyday without music being a part of (my day).'"
Being one of about 10 board-certified music therapists in the state, Smith said her colleagues and friends at the national office in the District of Columbia area are excited to have her practicing in the state.
"I was introduced to the program (of music therapy) and thought it was a perfect fit for me to combine music with behavioral science and helping people," Smith said. "To serve people who have special needs."
Wanting to make an impact on her hometown, Smith said she is coming to SW Resources in Parkersburg on Oct. 1 to help the people there with any needs they may have.
"There are many different places (her profession) can serve clients," Smith said.
West Virginia University is in the early planning stages of creating an American Music Therapy Association-approved undergraduate degree program in music therapy, Smith noted.
It would be the first music therapy program in the state, allowing West Virginia students who are interested in pursuing a music therapy degree and board certification to stay in-state for their education, Smith said.


text:
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As a lesbian I approve I always thought I was bi but I don't like guys so when a girl kissed me I loved it
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Need somewhere to protect your bras? Why not this beautiful bra bag? Yes please :) www.brayola.com
LGBTQ* Terms and Definitions Transgender V. Transsexual - As defined by different organizations, dictionaries and websites (Graph from Northwestern University's Medical Department)
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bo to taki lajfstajl, miecze i przyrządy metalowe do kłucia plebsu
GLAAD Media Reference Guide - Transgender Issues | GLAAD < definitions of gender, gender expression, sexual orientation, transgender, transsexual and more

subset: commoncrawl


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decided: October 9, 1986.
IN RE AIR CRASH DISASTER NEAR CHICAGO, ILLINOIS, ON MAY 25, 1979; LORA LUX, WIDOW AND PERSONAL REPRESENTATIVE OF WALTER H. LUX, DECEASED, PLAINTIFF-APPELLEE,v.MCDONNELL DOUGLAS CORPORATION, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 79 C 2487, Nicholas J. Bua, Judge.
Before WOOD, Circuit Judge, ESCHBACH, Senior Circuit Judge, and CAMPBELL, Senior District Judge.*fn*
ESCHBACH, Senior Circuit Judge.
Defendant McDonnell Douglas Corp. ("MDC") appeals from a judgment of $3,000,000 for plaintiff Lora Lux in this wrongful death action governed by Arizona law. The primary issues presented in this appeal are: (1) whether evidence relating to the plaintiff's receipt of insurance proceeds should have been admitted; (2) whether evidence of the decedent's income tax liability should have been admitted; and (3) whether the jury should have been instructed that its award would not be subject to taxation. For the reasons stated below, we will reverse and remand for a new trial on damages.
The facts, as set forth in the district court's opinion, are as follows:
On May 25, 1979, Walter Lux was killed while piloting American Airlines Flight #191, which crashed shortly after takeoff at Chicago's O'Hare International Airport . . . .
On the date of the accident, Walter Lux was 52 years old; [his wife] Lora Lux was 49 years old, and their only son, Michael, was 22 years old . . . . Walter Lux' income from American Airlines as a captain pilot was $78,954 in 1978. In addition to his annual income, Walter Lux enjoyed various fringe benefits from his employment with American Airlines. These benefits included life insurance, medical and dental insurance, and pension benefits. At trial, plaintiff claimed a total of $1,589,930 in economic loss, of which approximately $1,000,000 represented lost income . . . .
Walter and Lora Lux had been married 24 years at the time of the accident . . . . The Luxes had bought a summer home in Wisconsin and later remodeled the home into a year-round residence. Walter performed all of the electrical and plumbing work on the house. The Lux family lived year-round in the Wisconsin residence from 1965 until 1972. In 1972, they moved to Phoenix, Arizona . . . . [but] continued to use the Wisconsin home for vacations and holidays.
On the morning of Walter's death, Lora accompanied her husband to work at the airport in Phoenix. Walter was scheduled to pilot a plane from Phoenix to Chicago. Lora understood that Walter would fly to Chicago and then travel to the Wisconsin home to spend the Memorial Day weekend putting up wallpaper and carpeting the house. At about 1:00 p.m. that afternoon, Lora received a call at work from Walter's sister. Walter's sister informed Lora that a plane had crashed in Chicago. Lora responded that Walter was safe because he was on his way to the Wisconsin home. Unknown to Lora, however, Walter had been reassigned at the last minute to pilot Flight #191 from Chicago to Los Angeles. Minutes after Lora spoke with Walter's sister, a friend called and told Lora that American Airlines had just informed her that Walter was the pilot on the airline which crashed. Lora immediately went home and was met by a sale representative of American Airlines.
At the house, Lora took a tranquilizer and watched reports of the crash on the television. Michael soon arrived and the sale representative then drove Lora and Michael to the Phoenix airport. Michael and Lora flew to Chicago, arriving at 6:30 a.m. on Saturday. They were met by the chief pilot for American Airlines and immediately they were introduced to the pilot originally scheduled to pilot Flight #191. Later that morning Lora and Michael traveled to their Wisconsin home.
In Wisconsin, Lora made plans for a memorial service for Walter because she understood that Walter's body had been burned in the crash. The evening before the scheduled service, however, the funeral director informed Lora that American Airlines had sent Walter's remains for burial. Upon such short notice, Lora decided to have Walter's remains cremated.
About one month after the funeral, Lora returned to her work in Phoenix as a realtor. During this period Lora became depressed and began grinding her teeth. Lora's dentist first prescribed braces for her teeth and later surgery was required. After the surgery, however, Lora continued to grind her teeth. Lora was also treated by a psychiatrist for about one year. The psychiatrist prescribed tranquilizers in an effort to control Lora's depression.
On one occasion after the accident, Lora was flying from Chicago to Phoenix and was seated next to the Chicago fireman who first arrived at the scene of the crash. Not knowing Lora's identity, the fireman mentioned that he was the first fireman at the crash and that he "found the captain's body." On several occasions since the accident, Lora has been reminded of the crash by news reports and conversations with friends and acquaintances.
Since the accident, Lora has incurred about $13,000 in dental expenses and $1,900 in psychiatric expenses. She also has incurred the expense of hiring outside help for maintaining the Wisconsin house.
Lux v. McDonnell Douglas Corp., 608 F. Supp. 98, 100-2 (N.D. Ill. 1984).
Lora Lux, acting as Walter Lux's widow and the personal representative of his estate, brought suit against MDC. MDC agreed not to contest liability for compensatory damages. The parties stipulated that the case would be governed by the law of Arizona, which was the place of residence of Walter Lux and his survivors. From February 21 to February 27, 1984, the case was tried to a jury on the issue of compensatory damages only. On February 28, 1984, the jury returned a verdict in the plaintiff's favor. It allocated $4,000,000 in damages to Lora Lux and $150,000 in damages to Michael Lux.
The district court found that, although the jury's verdict was not the result of passion, prejudice, or caprice, it was excessive. It ordered a remittitur of $1,000,000 with respect to the damages allocated to Lora Lux, which the plaintiff accepted. Lora and Michael Lux and MDC have agreed that MDC will pay $150,000 in full satisfaction of that portion of the judgment allocated to Michael Lux. MDC thus appeals from only that portion of the judgment in favor of Lora Lux.
A. Evidence of Insurance Payments
1. Pecuniary Damages
The district court excluded evidence regarding the plaintiff's receipt of approximately $425,000 in insurance proceeds. MDC argues that the evidence should have been admitted as substantive evidence to reduce the plaintiff's pecuniary damages for lost support.*fn1 We disagree.
The collateral source (or collateral benefits) rule provides that "'payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable.'" Taylor v. Southern Pacific Transportation Co., 130 Ariz. 516, 519, 637 P.2d 726, 729 (1981) (en banc) (quoting Restatement (Second) of Torts § 902(2) (1979)). Arizona's collateral source rule squarely bars admission of evidence concerning the plaintiff's receipt of insurance payments. See, e.g., Michael v. Cole, 122 Ariz. 450, 452, 595 P.2d 995, 997 (Ariz. 1979); Hall v. Olague, 119 Ariz. 73, 74-75, 579 P.2d 577, 578-79 (Ariz. Ct. App. 1978). Since a federal court sitting in diversity must apply the collateral source rule of the state whose law governs the case, see Town of East Troy v. Soo Line Railroad Co., 653 F.2d 1123, 1132 (7th Cir. 1980), cert. denied, 450 U.S. 922, 101 S. Ct. 1373, 67 L. Ed. 2d 351 (1981), the district court properly excluded the evidence of insurance payments.
MDC nevertheless asserts without citation to authority that the collateral source rule does not apply in this case because the insurance policy under which Lora Lux received payments was not purchased by Walter Lux with his own salary, but was provided by his employer. We do not agree. MDC recognizes that "insurance was as much a part of the compensation Captain Lux received from his employer as were his salary, fringe benefits, and pension benefits," Appellant's Brief 14; however, MDC does not realize the full import of this fact. To obtain life insurance as part of his compensation package, Walter Lux had to forego a higher salary that he otherwise would be received. Thus, for the purpose of Arizona's collateral source rule, his life insurance policy was purchased by him just as if he had accepted the higher salary and had written a check from his bank account to pay the premiums. See Rustin v. Cook, 143 Ariz. 486, 490, 694 P.2d 316, 320 (Ariz. Ct. App. 1984) (disability pay arising from collective bargaining agreement is a collateral benefit); Hall, 119 Ariz. at 74-75, 579 P.2d at 579 (military benefits that are paid for by accepting a lower salary than that which might be expected from the equivalent civilian occupation are collateral benefits).
Moreover, MDC's argument that the collateral source rule does not apply "within the employment context," Appellant's Brief 36, would not benefit MDC even if it were correct. Even if payments pursuant to an insurance policy provided as part of an employment package might reduce damages in suit against the employer, Walter Lux's employer was American, not MDC. Since Walter Lux's insurance was not underwritten by MDC, the proceeds from that insurance cannot reduce MDC's liability for plaintiff's lost support.
Thus, the district court properly denied admission of the insurance payments for the purpose of reducing the plaintiff's damages.
2. Nonpecuniary Damages
The plaintiff testified that her emotional distress forced her to leave work as a real estate agent. MDC sought to prove that "the actual reason for her early retirement was her new-found financial security." Appellant's Brief 37. Accordingly, it argues that evidence that the plaintiff obtained insurance benefits should have been admitted to impeach her testimony that she stopped work because of her grief. We take MDC's argument to mean that the evidence should have been admitted as substantive evidence to reduce the plaintiff's nonpecuniary damages for pain and suffering. We disagree.
Although evidence of collateral benefits is irrelevant to the amount of the plaintiff's pecuniary damages for lost support, such evidence tends to disprove the plaintiff's testimony that her emotional distress compelled her to leave her job. Thus, it is relevant under Arizona law to the amount of the plaintiff's nonpecuniary damages for pain and suffering. Whether evidence is relevant is determined by state law, but whether relevant evidence is admissible is determined by the Federal Rules of Evidence. See In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 701 F.2d 1189, 1193, 1195 (7th Cir.), cert. denied, 464 U.S. 866, 104 S. Ct. 204, 78 L. Ed. 2d 178 (1983) (" In re Air Crash I "). Since evidence that the plaintiff received insurance payments is relevant to the plaintiff's nonpecuniary damages under state law, the Federal Rules of Evidence govern its admissibility.
Fed. R. Evid. 403 authorizes the district court to exclude evidence whenever its probative value is substantially outweighed by the danger of unfair prejudice. "The trial court's balancing of probative value and unfair prejudice is highly discretionary and its decision on admissibility will be accorded 'great deference.'" West v. Love, 776 F.2d 170, 174 (7th Cir. 1985) (quoting United States v. Medina, 755 F.2d 1269, 1274 (7th Cir. 1985)). Evidence of a plaintiff's receipt of insurance benefits carries with it the risk that a jury, in contravention of the collateral benefit rule, will reduce the plaintiff's pecuniary damages by the amount of insurance payments that he has received. As the Supreme Court recognized in an action that arose under the Federal Employers' Liability Act, 45 U.S.C. § 51 ("FELA"), evidence concerning the plaintiff's "receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact," so that "the likelihood of misuse by the jury clearly outweighs the value of this evidence." Eichel v. New York Central Railroad Co., 375 U.S. 253, 255, 11 L. Ed. 2d 307, 84 S. Ct. 316 (1963) (per curiam). Moreover, although we are not bound by Arizona's balancing of prejudice and probative value, we note that the Arizona Court of Appeals has recognized that
although technically prohibited from doing so by the collateral source rule, juries presented with collateral source benefits evidence normally take it into consideration in assessing damages and award the plaintiff a smaller amount by reason thereof; far worse, there is the distinct possibility that, presented with such evidence after the plaintiff has claimed extensive disability, the jury will regard him as a liar whose entire cause of action is manufactured, and will find against him on the very issue of liability.
Young v. Environmental Air Products, Inc., 136 Ariz. 206, 211-12, 665 P.2d 88, 94 (Ariz. Ct. App. 1982) (quoting Annot., 47 A.L.R.3d 234, 238-39 (1973)), modified, 136 Ariz. 158, 665 P.2d 40 (Ariz. 1983).
Furthermore, to the extent that evidence of insurance benefits is relevant to a plaintiff's non-pecuniary damages, there generally will be other evidence having greater probative value and less prejudicial effect. See Eichel, 375 U.S. at 255; Young, 136 Ariz. at 212, 665 P.2d at 94. For example, MDC brought out testimony that the plaintiff quit her job not because of grief, but because she had "lots of things to do at home." Tr. 312. MDC also argued to the jury that the plaintiff failed to call her psychiatrist or to produce any documents that would verify her story that she left work because of her grief. Tr. 517-19.
The district court weighed the potential for prejudice posed by evidence that the plaintiff received insurance payments against the probative value of that evidence and the availability of other evidence relevant to the amount of the plaintiff's nonpecuniary damages. It decided to exclude evidence of the receipt of insurance benefits because its probative value was substantially outweighed by the danger of unfair prejudice. We conclude that the district court did not abuse its discretion by striking this balance.*fn2 See Pucalik v. Holiday Inns, Inc., 777 F.2d 359, 363 (7th Cir. 1985).
B. Evidence of the Decedent's Income Taxes
1. Arizona's Measure Of Damages
The district court excluded evidence of the income taxes Walter Lux would have paid on his earnings. MDC argues that this evidence was relevant to the measure of damages under Arizona's wrongful death statute and, therefore, should have been admitted under the Federal Rules of Evidence. We agree.
As the Ninth Circuit has observed, "the law of Arizona on the incidence of income taxes in tort damage awards is not as clear as it might be." Felder v. United States, 543 F.2d 657, 666 (9th Cir. 1976). Arizona's wrongful death statute provides only that "[i]n an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover." Ariz. Rev. Stat. Ann. § 12-613. Whether the measure of the plaintiff's pecuniary damages for lost support in wrongful death actions is the decedent's gross income or the surviving parties' net pecuniary loss (i.e., the decedent's income less personal consumption expenses and taxes) has not been decided by any Arizona court.
Indeed, prior to the Ninth Circuit's lament in Felder, the only Arizona case law that arguably addressed the admissibility of evidence of income taxes in a tort suit consisted of a passing statement by the state's highest court in a personal injury action. While considering whether a jury should be instructed that its award is not subject to income taxation, the Arizona Supreme Court stated that "the case should be tried on the issues and presented to the jury with a correct measure of damages, of which the incident [sic] of income tax has no part." Mitchell v. Emblade, 80 Ariz. 398, 405, 298 P.2d 1034, 1039 (Ariz. 1956). Given the context in which this statement was made, it is unclear whether Mitchell stands for the proposition that evidence of income taxes should not be admitted in a personal injury case, or simply not be admitted in a personal injury case, or simply that the jury in a personal injury suit should not be instructed that its award is exempt from federal income taxation.*fn3
The only state court decision since Mitchell that has spoken to this issue is an appellate court opinion in a personal injury action. In that case, the Arizona Court of Appeals stated that "gross pay and not 'net' or 'take home' pay is the proper basis for computing loss of future earnings, and that evidence of income taxes or deductions should not be allowed for the purpose of reducing the amount of damages." Seely v. McEvers, 115 Ariz. 171, 174, 564 P.2d 394, 397 (Ariz. Ct. App. 1977).
Nonetheless, the Arizona Supreme Court's decision in Mitchell and the Arizona Court of Appeals' opinion in Seely involved personal injury actions, not wrongful death cases. Whereas the purpose of pecuniary damages in a personal injury suit is to replace a plaintiff's lost earnings, the purpose of pecuniary damages in a wrongful death action is to replace the survivors' lost support. For this reason, the survivors' pecuniary damages in wrongful death actions are reduced by the amount that the decedent would have spent on personal consumption expenses. It would seem that, since a plaintiff in a wrongful death case is entitled to the amount that the decedent would have contributed to the plaintiff's support, the plaintiff's pecuniary damages similarly should be reduced by the amount that the decedent would have paid in income taxes. See F. Harper, F. James & O. Gray, The Law of Torts § 25.12 (2d ed. 1986); S. Speiser, C. Krause & A. Gans, The American Law of Torts § 8.11 (1985). For this reason we held that decisions addressing the admissibility of evidence of income taxes in personal injury cases do not govern the admissibility of such evidence in wrongful death cases. See In re Air Crash I, 701 F.2d at 1195-96 (discussing exact issue with respect to Illinois law). We therefore conclude that Mitchell and Seely are inapposite.
Divining in the absence of any relevant authority how a state's highest court would rule ordinarily would be as exact as foretelling the future from the flight of birds; however, in this case we have been spared such an exercise. The Arizona Supreme Court has repeatedly reaffirmed that, in the absence of a controlling statute or precedent, it will follow the Restatement of the Law whenever it is applicable. See, e.g., Bank of America v. J & S Auto Repairs, 143 Ariz. 416, 418, 694 P.2d 246, 248 (Ariz. 1985); Keck v. Jackson, 122 Ariz. 114, 115, 593 P.2d 668, 669 (Ariz. 1979); Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 574, 535 P.2d 599, 613 (Ariz. 1975); MacNeil v. Perkins, 84 Ariz. 74, 81, 324 P.2d 211, 215 (Ariz. 1958); Bristor v. Cheatham, 75 Ariz. 227, 236, 255 P.2d 173, 179 (Ariz. 1953); Ingalls v. Neidlinger, 70 Ariz. 40, 46, 216 P.2d 387, 390 (Ariz. 1950); Waddell v. White, 56 Ariz. 525, 527, 109 P.2d 843, 844 (Ariz. 1941); Cole v. Arizona Edison Co., 53 Ariz. 141, 144, 86 P.2d 946, 947 (Ariz. 1939); Smith v. Normart, 51 Ariz. 134, 143, 75 P.2d 38, 42 (Ariz. 1938). We thus may turn to the Restatement (Second) of Torts to ascertain Arizona law on the admissibility of evidence of the decedent's income taxes in wrongful death actions.
The Restatement's position on the admissibility of evidence of income taxes in wrongful death suits is clear. In its comment to the section entitled "Effect of Taxation" on tort awards, the Restatement provides that
When the injured party dies and action is brought under a wrongful death statute, the problem before the court [as to the admissibility of evidence of income taxes] is not the same [as it is in personal injury cases]. In the majority of states, the recovery of the statutory beneficiaries is measured by the contributions that the deceased would have made to them if he had lived . . . . This amount obviously could not be equivalent to his gross earnings, as he could not have given them funds that he spent on himself or paid in taxes or used for other purposes; and an appropriate percentage of his expected earnings, taking into consideration these various types of expenditures, is proper.
Restatement (Second) of Torts § 914A comment b. The Restatement thus would allow evidence of the decedent's income taxes to reduce the survivors' pecuniary damages whenever a state's wrongful death statute measures damages by the amount that the decedent would have contributed to the survivors.
Based as it is on Lord Campbell's Act,*fn4 Arizona's wrongful death statute, like those of the majority of the states, measures the survivors' pecuniary damages by the contributions they would have received from the decedent. See Tr. 549-50 (jury instruction on pecuniary damages),*fn5 see also, e.g., Solomon v. Harman, 107 Ariz. 426, 430, 489 P.2d 236, 240 (Ariz. 1971). Given the absence of any Arizona authority to the contrary, we believe that the Arizona Supreme Court would follow the Restatement rule by taking the decedent's income taxes, as well as his personal consumption expenses, into consideration when calculating the survivors' pecuniary in a wrongful death action. Cf. In re Air Crash I, 701 F.2d at 1195-99 (measure of damages under Illinois' wrongful death statute, which also is based on Lord Campbell's Act, is the decedent's income less personal consumption expenses and taxes). We, therefore, hold that evidence of the decedent's income taxes is relevant to the plaintiff's pecuniary damages under Arizona's wrongful death statute, and, hence, should have been admitted under the Federal Rules of Evidence. See id. at 1195 (evidence of decedent's income taxes that is relevant to a state's measure of damages in a wrongful death action is admissible under Fed. R. Evid. 402).*fn6
Introduction of evidence of the decedent's income tax liability most likely would have substantially changed the jury's calculation of the plaintiff's pecuniary damages. The erroneous exclusion of such evidence thus requires us to reverse the judgment below. Because the jury returned a general verdict and did not apportion its awards for pecuniary and nonpecuniary damages, we cannot ascertain with any certainty the amount of nonpecuniary damages that the jury concluded that the plaintiff should have received for her pain and suffering and loss of companionship. As a consequence, we must remand this matter for a new trial on both pecuniary and nonpecuniary damages.
2. Decedent's Second Career
In addition to seeking pecuniary damages for the loss of the decedent's salary and fringe benefits as an airline pilot, the plaintiff sought to prove that, after her husband's mandatory retirement from American Airlines at age 60, Walter Lux would have begun a second career in real estate in Phoenix. She estimated that her husband would have earned an annual salary of approximately $50,000 from the real estate business, and would have worked in real estate for 10 years before retiring at age 70. The plaintiff's expert witness estimated that the present value of these earnings before deducting 10% of the decedent's personal consumption expenses, would be approximately $235,000.
MDC endeavored to demonstrate that Captain Lux would not have embarked upon a second career in real estate. It brought forth evidence that the decedent would have received approximately $81,000 annually in pension payments. It tried to show that these pension payments would have placed the decedent in a high tax bracket so that he would have received only about $27,000 in after-tax income of the $50,000 in pre-tax income he would have earned in real estate. MDC also adduced evidence that, by pursuing a second career, the decedent would have forfeited approximately $12,000 per year in social security benefits. It attempted to argue that, since Captain Lux would have netted only about $15,000 per year ($27,000 in after-tax income less $12,000 in foregone social security payments) from his real estate business, he would not have begun a second career.
The district court allowed in evidence of the pension that the decedent would have received and the social security benefits that he would have forfeited; however, it barred MDC from introducing evidence as to the decedent's marginal tax rate and from arguing to the jury that his income tax liability would have deterred him from working in real estate. MDC argues that the district court erred by excluding such evidence and argument. We agree.
The sole reason for the district court's decision was its belief that evidence of the decedent's income taxes was irrelevant to the measure of the plaintiff's pecuniary damages under Arizona's wrongful death statute. See Lux, 608 F. Supp. at 104 n.4. It apparently concluded that admission of such evidence for the limited purpose of proving that the decedent would have not started a second career would be unduly prejudicial. The plaintiff does not suggest any other reason why the district court should have excluded such evidence. Because we have held that evidence of the decedent's income taxes should have been admitted for the purpose of proving that the decedent would not have undertaken a second career. Therefore, on remand, MDC shall be permitted to introduce such evidence and to draw reasonable inferences from that evidence in its arguments before the jury.
C. Nontaxability Instruction
The district court also declined to instruct the jury that its award would not be taxes. MDC argues that such an instruction*fn7 was required in this case. We agree.
The Supreme Court has held, as a matter of generally applicable federal common law, that the jury should be instructed that damages for lost future wages are not subject to federal income taxation. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 484-88, 69 L. Ed. 2d 784, 101 S. Ct. 2870 (1981) (Liepelt "articulated a federal common-law rule."); Norfolk & Western Railway Co. v. Liepelt, 444 U.S. 490, 496-98, 62 L. Ed. 2d 689, 100 S. Ct. 755 (1980) (FELA defendant entitled to nontaxability instruction). The rationale for the federal rule is that, although most jurors are acutely aware of the effect of income taxes, few jurors appreciate that the amount of damages received on account of personal injuries is not taxable income. See 26 U.S.C. § 104(a)(2); see also Liepelt, 444 U.S. at 496 (exemption applies to wrongful-death awards) (citing Rev. Rule 54-19, 1954-1 Cum. Bull. 179). Thus, the jury, mistakenly believing that its award will be taxes, may inflate the amount of the plaintiff's damages so that the award, less the taxes that it presumes the plaintiff must pay, equals the amount to which the jury believes that the plaintiff is entitled. See Liepelt, 444 U.S. at 497-98. In contrast to the federal rule, however, Arizona law clearly states that the jury should not be instructed that its award will not be taxes. See Mitchell v. Emblade, 80 Ariz. 398, 403-05, 298 P.2d 1034, 1037-38 (Ariz. 1956); Young v. Environmental Air Products, Inc., 136 Ariz. 206, 213, 665 P.2d 88, 95 (Ariz. Ct. App. 1982), modified, 136 Ariz. 158, 665 P.2d 40 (Ariz. 1983). We therefore must decide whether to apply federal or state law as to the nontaxability instruction.
Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), and its progeny generally govern conflicts between state and federal law in diversity cases; however, "the Erie doctrine is not a monolithic legal principle to be employed in resolving all disputes as to the applicable law or procedure in diversity actions." Platis v. Stockwell, 630 F.2d 1202, 1204 (7th Cir. 1980). Indeed, the Erie doctrine subsumes three distinct types of cases. See generally Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 698 (1974). First, if a statute enacted by Congress conflicts with state law, a federal court sitting in diversity should apply federal law unless Congress exceeded its constitutional authority in enacting the statute. See In re Air Crash I, 701 F.2d at 1193. Second, if a duly promulgated federal rule of procedure conflicts with state law, the Rules Enabling Act, 28 U.S.C. § 2072,*fn8 commands a federal court to apply its rule of procedure unless to do so would abridge a substantive right under state law. See Walker v. Armco Steel Corp., 446 U.S. 740, 747, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980); Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965). The third type of case arises when a federal common-law rule, which is not the subject of a congressional statute or a rule of procedure adopted by the Supreme court under the aegis of the Rules Enabling Act, conflicts with state law; in that event, the Rules of Decision Act, 28 U.S.C. § 1652,*fn9 governs the choice between federal and state law. See Hanna, 380 U.S. at 465-68 & 468 n.9; Roberts v. Sears, Roebuck & Co., 573 F.2d 976, 984, 197 U.S.P.Q. (BNA) 516 (7th Cir.), cert. denied, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 168, 199 U.S.P.Q. (BNA) 640 (1978); cf. Morgan v. South Bend Community School Corp., 797 F.2d 471, slip op. at 6 (7th Cir. 1986) (Rules of Decision Act is not limited to diversity cases). See generally Redish & Phillips, Erie and the Rules of Decision Act: In Search of the Appropriate Dilemma, 91 Harv. L. Rev. 356 (1977).
Since the federal rule that the jury should be instructed that its award is not subject to federal income taxation is a matter of federal common law, the Rules of Decision Act informs our choice between federal and Arizona law. Because the language of § 1652 is not self-defining, the courts have placed a judicial gloss upon the Act. The Supreme Court originally suggested that the Rules of Decision Act required the application of state law whenever the choice of law would determine the outcome of the litigation. See Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945) (Frankfurter, J.); however, it has modified its analysis in its most recent decision (which surprisingly is over two decades old) addressing the choice of law under the Rules of Decision Act in diversity cases. In Hanna v. Plumer, 380 U.S. 460, 465-68 & n.9, 14 L. Ed. 2d 8 & n.9, 85 S. Ct. 1136 (1965), a case that dealt with the validity under the Rules Enabling Act of Fed. R. Civ. P. 4(d)(1), the Court indicated in dicta that state law should be applied whenever the choice of federal law would encourage forum-shopping or would lead to an inequitable administration of its laws. In decisions of our own, we have expanded the Court's exegesis of the Act. See, e.g., Roberts v. Sears, Roebuck & Co., 573 F.2d at 984-85 (federal law should be applied when policy underlying the state rule is merely procedural).
In particular, we have previously addressed the choice between federal and state law as to whether the jury should be instructed that its award is tax exempt. See In re Air Crash I, 710 F.2d at 1199-1200. In that case, a nontaxability instruction was required by federal common law, but was barred by Illinois law. We held that federal law should be applied unless Illinois had a substantive interest for refusing the instruction. The Illinois Supreme Court had articulated three grounds for not giving the instruction: It would deprive the plaintiff of a tax benefit intended by Congress; it is unnecessary if the jury is instructed on the proper measure of damages; and it would invite the flood of cautionary instructions. See Hall v. Chicago & North Western Railway, 5 Ill. 2d 135, 148-53, 125 N.E.2d 77, 84-86 (1955); see also Klawonn v. Mitchell, 105 Ill. 2d 450, 475 N.E.2d 857, 86 Ill. Dec. 478 (1985) (reaffirming state practice of refusing nontaxability instruction). We found that the first reason was incorrect as a matter of federal law because the Supreme Court had held that Congress, by excluding personal-injury awards from taxable income, did not intend to confer a tax benefit upon plaintiffs. See Liepelt, 444 U.S. at 496 n.10. We concluded that the other two interests articulated by the Illinois Supreme Court "should not bind a federal court because they speak to matters of court administration, about which the federal courts have independent competence." In re Air Crash I, 701 F.2d at 1200. Hence, we held that, since Illinois did not have a substantive reason for refusing the instruction, federal law should apply.
Therefore, to determine whether state or federal law should be applied in this case, we must examine the grounds for refusing the instruction that have been expressed by the Arizona courts. The Arizona Supreme Court also has asserted three reasons: the instruction would complicate the trial; it is unnecessary if the jury is instructed on the proper measure of damages; and it would invite a flood of cautionary instructions. See Mitchell, 80 Ariz. at 403-05, 298 P.2d at 1037-38. As was true of the latter interests articulated by the Illinois Supreme Court in Hall,*fn10 the reasons expressed by the Arizona Supreme Court in Mitchell are merely procedural. By refusing the nontaxability instruction, Arizona simply seeks to regulate the internal procedure of its courts; it does not seek to regulate primary conduct of its citizens or to favor a particular class of litigants. See Redish & Phillips, 91 Harv. L. Rev. at 394-400 (state interest in regulating its docket is entitled to less weight than an interest in regulating primary conduct or favoring a class or litigants). Since Arizona has not articulated a substantive interest for not giving the instruction, federal law should apply.
We therefore hold that in this diversity case governed by Arizona law the jury should be instructed its award will not be subject to federal income taxation.*fn11 To do otherwise would deny effect to the substantive federal interest for giving the instruction, viz., preventing the jury from inflating its award.
The district court, however, concluded that Arizona had a substantive interest for denying the instruction. We disagree with the district court's analysis for two reasons. First, the district court predicated Arizona's substantive interest upon its belief that Arizona's measure of pecuniary damages in wrongful death cases was the decedent's gross, rather than net, income. Because Arizona actually measures damages by the decedent's income less his personal consumption expenses and taxes, the premise relied upon by the district court is incorrect.
We further differ with the district court for a more fundamental reason -- assuming arguendo that Arizona measures the survivors' pecuniary damages by the decedent's gross income, that a state's measure of damages is gross, rather than net, income does not supply a substantive interest for refusing a nontaxability instruction. Whether the plaintiff's pecuniary damages for lost support should be reduced by the amount of the income taxes that the decedent would have paid, and whether the jury should be instructed that its award will not be taxes are distinctly different issues. That is to say, whether a jury calculates damages according to the decedent's gross or net income, there is a risk that the jury will inflate its award. Since the jury might inflate its award regardless of the state's measure of damages, that a state has adopted a "gross income" measure of damages does not constitute a substantive reason for refusing the instruction.
An example illustrates the point. Assume that a decedent would have earned $100,000 per year, would have spent $18,000 each year on personal consumption expenses, would have paid $15,000 annually in income taxes, and would have lived 10 more years before retiring. If a state measures damages according to the survivor's net pecuniary loss, then the plaintiff's pecuniary damages would be approximately $412,000, which is the present value of a 10% discount rate of $67,000 ($100,000 less $33,000 for personal expenses and taxes) per year for 10 years. A jury, mistakenly assuming that the plaintiff's pecuniary damages will be taxes at an average rate of 50%, might award the plaintiff $824,000 in the belief that she will receive $412,000 after paying taxes equal to half the award. To prevent the jury from inflating the award, a federal court sitting in diversity would instruct the jury that its award is not subject to federal income taxation, unless the state had a substantive reason for refusing the instruction.
If the state measures damages by the decedent's gross, rather than net income, then the plaintiff's pecuniary damages would be $504,000, that is, the present value of $82,000 a year for 10 years. There is the same risk that a jury, acting on its misconception that the plaintiff must pay taxes at an average rate of 50%, will inflate its award to $1,008,000. Since there is the same risk of overcompensating the plaintiff regardless of the state's measure of damages, a federal court would instruct the jury that its award will not be taxed. Merely that the state measures damages by the decedent's gross income thus does not lessen the need for a nontaxability instruction, and does not create a substantive interest on the part of the state for refusing the instruction. Indeed, because the size of the jury's verdict is greater when a state measures damages according to the decedent's gross income, the amount by which the jury is likely to inflate its verdict, and correspondingly, the need for giving a nontaxability instruction are greater than if the state measures damages by the survivors' net pecuniary loss.
D. Instructions and Counsel's Statements Concerning Liability
At the start of the trial, the district court informed the jury that the plaintiff "charges that because of the condition of the DC-10 aircraft, the defendant, McDonnell Douglas Corporation, is liable to her and to her son, Michael Lux." Tr. 4. At the close of the trial, the district court instructed the jury that the plaintiff "claims that because of the condition of that DC-10 aircraft, the defendant, McDonnell Douglas Corporation, is liable to her and her son, Michael Lux." Tr. 548. MDC asserts, without citation to authority that, since MDC had admitted liability, the district court should not have informed the jury of the plaintiff's theory of liability. We disagree. The district court's instructions did not delve into the details of the plaintiff's theory of liability of suggest that MDC had agreed to the plaintiff's theory of recovery. Instead, they fairly and accurately informed the jury of the broad nature of the plaintiff's claim and of the fact that MDC had admitted liability. The court's statements, which simply told the jury why they were called upon to decide this case, were entirely proper.
MDC also alleges that the district court should have sustained the defendant's objections to certain statements made by the plaintiff's counsel in closing argument. The comments about which MDC complains include the following: "The Nature of this lawsuit is what I would call a consumer protection type case," Tr. 473; "His [Michael Lux's] dad was killed because of their responsibility,' Tr. 511; "We're here because of the responsibility of McDonnell Douglas in the manufacture of this aircraft," Tr. 533; and "She [Lora Lux] had Walter Lux, and they took him away." We note that MDC did not object to many of the statements about which it protests on appeal, and failed to present a standing objection to such statements. See, e.g., United States v. Verrusio, 803 F.2d 885, slip op. at 15 (7th Cir. 1986) (failure to seek continuing objection). Moreover, even if MDC had raised contemporaneous objections to plaintiff's arguments, "'improper comments during closing argument rarely rise to the level of reversible error.'" Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir. 1986) (quoting Ramsey v. American Air Filter Co., 772 F.2d 1303, 1311 (7th Cir. 1985)); see also Canada Dry Corp. v. Nehi Beverage Co., 723 F.2d 512, 526-27 (7th Cir. 1983); Lenard v. Argento, 699 F.2d 874, 894 (7th Cir.), cert. denied, 464 U.S. 815, 78 L. Ed. 2d 84, 104 S. Ct. 69 (1983); Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d 1226, 1246 (7th Cir. 1983), aff'd, 465 U.S. 752, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1984).
Nevertheless, there is no need to determine the propriety of these statements because there must be a new trial on damages. The parties' primary protection against prejudicial comments is the sound judgment of the district court, and we have faith that the district court, on remand, will guard against any improper argument.
E. Excessiveness of the Verdict
Finally, MDC argues that the jury's verdict, even as reduced by remittitur, is excessive when compared to other awards under Arizona's wrongful death statute. The judgment from which MDC appeals is for $3,000,000. By way of comparison, the highest reported verdict under Arizona's wrongful death statute appears to be for $2,000,000. See Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599 (Ariz. 1975). MDC asserts that, since the instant award is $1,000,000 greater than the verdict in Lueck, the judgment is excessive. We, however, should not simply compare the total damages, but should distinguish between the pecuniary and nonpecuniary damages awarded in the two cases. According to the testimony of the plaintiff's expert witnesses, roughly $1,590,000 of her award represents pecuniary damages; thus, the remainder, approximately $1,410,000, constitutes nonpecuniary damages. In Lueck, the $2,000,000 award consisted of approximately $280,000 in pecuniary damages and about $1,720,000 in nonpecuniary damages. See 111 Ariz. at 571, 535 P.2d at 610.
With respect to pecuniary damages, Captain Lux was an airline pilot, who at the time of his death in 1979 was earning approximately $79,000 plus fringe benefits per year, while the decedent in Lueck was a journeyman concrete worker, who in the 5 years preceding his death in 1966 had a taxable income in his best year of less than $6,000. Given the difference between the decedents' earning capacities, the change in economic conditions between 1966 and 1979, and the detailed evidence of Captain Lux's expected earnings, an award of $1,600,000 in lost support does not seem excessive.
As for nonpecuniary damages, the plaintiff in this case received roughly $1,410,000, whereas the plaintiff in the Lueck case was awarded approximately $1,720,000. In light of the detailed evidence of the plaintiff's distress at her husband's death, an award of $1,410,000 for loss of companionship and pain and suffering, which actually is less than the nonpecuniary damages awarded in Lueck, does not appear excessive. Cf. Reben v. Ely, 146 Ariz. 309, 310, 705 P.2d 1360, 1360-61 (Ariz. Ct. App. 1985) ($1,000,000 award for loss of consortium to parents of severely brain-damaged son).*fn12 Nonetheless, since there must be a new trial, we find it unnecessary to decide whether damages of $3,000,000 are excessive and we offer these comments only to guide the district court on remand.
For the reasons stated above, the judgment below is REVERSED and REMANDED for further proceedings consistent with this opinion.
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Hello!! I'm Bootsie's younger bigger sister! I miss her like crazy but I'll get to see her again someday! :) Anyway... I was a thank you gift for my dad after he did a lot of side work for his boss. His boss didn't have the money to give him as a thanks and told him to choose which pup he wanted. He chose me! For two weeks, or there about, I lived at Mom's old house with her, Bootsie, and Mom's parents. Then Mom and Dad got married and we're all under one roof! Well, used to. Mom and Dad got two more sisters for me to play with. Kitty Kitty and Belle. I'm a little hyper but I'm still young. I love to be outside, whether it be sunny, rainy, snowing, whatever the weather is. Right now, Mom and Dad are trying to teach me how to give hugs like Bootsie did. I'm getting the hang of it, kinda. But I'm glad to meet everyone and hope we all can be friends!!
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I am Sibylla Brown. I was born in Germany in 1940. In 1946 my father, a German Operation Overcast scientist, was brought to the U.S. My family followed him to the U.S. in 1947, settling in Cedar Rapids Iowa in 1950. I married my husband, Bill in 1962. Bill practiced dentistry in Des Moines for over 40 years. In 1993 we sold our house in Des Moines and moved to a 200 acre farm in Decatur County, Iowa. Except for a small vineyard we had no plans to farm our land. But we did want to take care of it, particularly the overgrown oak and hickory woodlands. We began timber stand improvement in 1993. When we learned our land was actually a rare oak savanna remnant we implemented prescribed fire. I keep monthly journals to record our activities and observations. These posts summarize them.
FIELD JOURNAL: September 2016
On September 21 Bill and I were surprised to find over 30 Spiranthes cernua, Slender ladies tresses orchids, blooming on the border between the old cornfield and the prairie remnant in our West Creek unit. I usually expect to find a few ladies tresses here and there but such abundance was exceptional . Although S. cernua is considered common I am always delighted to find orchids in bloom.
On September 27 Bill and I were walking along the south trail when I spotted a Hairstreak butterfly nectaring on goldenrod. Through my field glasses I could see that it was very worn. Except for the large orange spot on the lower margin the ventral wing markings had faded. We had neither a butterfly net or a camera with us but I was able to pick up the specimen with my bare hands. When it opened its wings I saw the dark bordered bright iridescent blue dorsal surface. Without question this was a White M hairstreak (Parrhasius m-album), considered extremely rare in Iowa. This species's habitat is usually restricted to the oak canopy. However, as tree nectar sources dwindle in the fall it is drawn to fall blooming goldenrod.
We attracted three stalk borer moth species to black lights in September: Papaipema baptisiae (indigo stem borer), Papaipema marginidens (Brick red stalk borer), and Papaipema unimoda (Meadow rue borer). Underwing moths also continued to be attracted to black lights and moth bait on shagbark hickory trees. We saw both Catocala subnata (Youthful underwing) and Catocala neogama (The bride) which are difficult to differentiate except by the hindwing tibia. C. subnata has many spines, C. neogama only a few. Catocala cara (Darling underwing) and Catocala angusi (Angus's underwing) came both to the baited trees and black lights.
Ectomycorrhizal mushrooms were still scarce in September. The second week of September we had sufficient rain to produce some fruiting. That stimulated large clumps of Laccaria ochropurpurea, a few brittle caps, some golden chanterelles and hedgehogs. The only uncommon species was Boletus submentosus var. gracilis which fruited along the southeast woodland trail and in the East Savanna.
FIELD JOURNAL: August 2016
The best way to prevent mushrooms from fruiting is to schedule a mushroom foray. We had a foray scheduled here on August 27. Late August and early September are usually the most reliable months for ectomycorrhizal (ECM) fungi. This year, however, they were abundant in July. The hot, dry weather in mid-August ended that. When it did start raining a few days before the scheduled foray it was too late. It takes five days to one week before there is significant fruiting.
The following week, after we had had sufficient precipitation, the ECM fungi were still sparse. But I did see see some interesting species. Of particular note was Hygrocybe minutula which I found fruiting in grass in the East Savanna. An uncommon species this small red waxcap mushroom has a very viscid scarlet cap which fades to yellow-orange with age. The reddish stalk fades to yellow. Hygrocybe minutula is distinguished from the other red waxcaps by its bitter taste, small cap, and the fact that it does not stain black. Since I could find no record this species at Iowa State University herbarium the Timberhill find may be a state record.
Puffballs became very abundant after the late August rain. This group of Lycoperdon marginatum, Peeling puffball, were fruiting along the trail through the south meadow on August 31. It is distinguisted by the way its white, spiny spore case peels off in irregular patches exposing the dark olive-brown inner surface that develops a pore-like mouth from which the spores are released at maturity. Lycoperdon echinatum is very similar in appearance but the spines break off individually.
I was pleased to see Zabulon skippers again in the southeast woodland. Although common in the eastern states it is considered a rare breeding resident in Iowa. At Timberhill we always see it in the same location – along the southeast woodland trail.
The three pink false foxglove species found at Timberhill were all blooming by the end of August. Management of the bottom field in our West Creek unit has stimulated abundant blooming of two species: Slender false foxglove, Agalinis tenuifolila, and Eared false foxglove, Tomanthera auriculata. When we began managing this field T. auriculata was limited to the adjacent prairie remnant. An annual species, this plant requires disturbance, particularly fire, to germinate. After ten years of prescribed burning it has spread throughout in this old field.
FIELD JOURNAL: July 2016
After just over one inch of rain in June, we had 6.57 inches rain in July.
July turned into a very good mushroom month with abundant fruiting of ectomycorrhizal fungi. Green, red, black, and yellow Russulas (brittle caps) fruited heavily throughout the East Savanna woodlands with Russula variata, R. ochraleucoides, R. virescens, and R. nigricans being the most abundant. We collected the first Golden chanterelles on July 15. They continued to fruit the rest of the month.
Several boletes (mushrooms with pores instead of gills) fruited as well. I was particularly pleased to find three Rubroboletus rhodosanguineus specimens on a white oak hillside. This large red bolete has a red pore surface which ages to a dull coral-red. The golden yellow stalk is covered by a blood red reticulum that terminates into a darker red base. The stalk, the pore surface, and flesh instantly bruise blue. The Timberhill specimens are the only Iowa record for this species. An herbarium search found only 11 USA records: West Virginia, New York, and Iowa.
Another interesting July find was Boletus spadiceus var. gracilis which fruited along the southeast woodland trail. Also an uncommon species this small yellow-brown bolete fruited abundantly in July. I found eleven specimens on July 27. It is easily identified by the emerald-green flash reaction to a drop of ammonium hydroxide on the cap. A mycorrhizal partner of eastern North American hardwoods this bolete is distinguished from Boletus spadiceus which is only found in coniferous woodlands.
I don't often see the Indigo milky cap (Lactarius indigo) at Timberhill. And when I do it's never where one would expect to see it. Mycorrhizal with oaks and pines it usually occurs in mixed hardwood-coniferous woodlands. However, I usually find it in our prairie openings. This specimen was fruiting at the base of big bluestem grass next to a scrub shingle oak in the West Creek virgin prairie remnant. When cut this milky cap exudes bright blue milk.
As you can see in this photo the milk has turned the white flesh bright blue. (And has stained my fingers blue.)
FIELD JOURNAL: June 2016
I've always hated dogbane. Although it's a native plant it spreads like a weed, particularly in newly opened woodlands. In the East Savanna is has spread over the hillside where more conservative plants such as Wild hyacinth (Camassia scilloides) flourish and False hellebore (Veratrum woodii) are well established. It has also filled in the understory in the white oak and bur oak savanna we are restoring in our West 40 unit. But now that I have observed how much the butterflies love it I have come to treasure each patch of flowering Dogbane. In June I saw not only Coral and Edward's hairstreaks on Dogbane, but Bronze and Gray coppers as well.
June was a good month for Hairstreak butterflies. On the 23rd we counted 10 specimens in under an hour. Most were on butterfly milkweed but we did see an Edward's hairstreak nectaring on leadplant. And I finally collected a Hickory hairsteak. Larvae of this rare species consume shagbark hickory. Although this tree is abundant at Timberhill I had never seen a Hickory hairstreak. It is difficult to distinguish from Banded hairsteak. The difference between the two is that the inner band of dots (post median) on the Hickory hairsteak is wider along the leading edge and is white edged on both sides.
Great spangled fritillaries and Hackberry emperors were the most abundant butterfly species here in June. It was not unusual see 50 Hackberry emperors puddling in West Creek and over a hundred Great spangleds in flight. We saw the first Regal fritillary on butterfly milkweed on June 27. Also flying in June were the Horace's and Wild indigo duskywings.
A friend visited for two nights of mothing and a day of butterlies in June. When we were observing hairstreaks on West Creek dogbane I was surprised to see a Hummingbird clearwing moth land nearby. Although the Snowberry clearwing is fairly common at Timberhill I'd never seen the Hummingbird clearwing. My mothing friend was surprised by the abundance of Leopard moths at Timberhill. He counted 10 specimens on the second night. Being a novice I had no idea this was unusual. Also of note was a Spiny oak-slug moth that came to his lights. I sighted another on June 27.
Because of the hot, dry weather in June summer mushrooms were non existent. In 2014 and 2015 golden chanterelles fruited here from mid-June into September. We certainly miss the chanterelle frittatas and Girolles a la forestiere, Jane Grigson's preparation of chanterelles, new potatoes, and bacon.
The first week of June I woke up to a whip-poor-will singing in the south meadow. A nice way to start the day.
FIELD JOURNAL: May 2016
Wildflower bloom continued to be spectactular in May. I've never seen the spring wildflowers so abundant. Plants that used to be limited have now spread throughout the East Savanna. When we began restoration Cream wild indigo was confined to a small patch along a fence line in the northernmost East Savanna ridge top. Now it has not only spread across the entire ridge top but also to the next two ridges to the south. On the second ridge a few Dwarf larkspurs (Delphium tricorne) at the base of a white oak have spread over the entire upper hillside. Yellow pimpernel used to be confined to a nose slope above Brush Creek. It now blooms throughout the East Savanna woodlands.
The first time I saw Purple twayblade orchids here they were blooming between two white oaks west of our driveway. There were only two plants. Now they also bloom throughout the East Savanna, some in clumps of twenty or more specimens. Although this is a common orchid its presence indicates that a sight's natural quality has been restored. Both the twayblade and Yellow lady's slipper orchids were blooming the May 21.
Bill and I were pleased to see an abundant population of Juvenal's duskywing butterflies again this year. We saw them puddling in West Creek, flying out of the woodlands into the prairie openings, and nectaring on Lousewort. Our first of the year Buckeye was sighted on May 22 in the West Creek field. Its larval food source, Slender false foxglove, is plentiful in this field so the Buckeyes will become more numerous as the season unfolds. The colors of a Great spangled fritillary seen on May 26 were so vibrant I mistook it for a Regal fritillary when I first spotted it.
I saw the first Giant swallowtail butterfly on May 12. Sightings of this species became more frequent each day. Interestingly I didn't see a Tiger swallowtail until May 23. They are usually earlier and more numerous than the Giants swallowtails. Last year the FOY Tiger swallowtail was on April 16 and the FOY Giant swallowtail was on May 25.
Moths were flying in abundance in May. Our first Luna moth of the year came to a moth light on May 6. The next night we saw four specimens. Polyphemus moths, Lettered, Laurel sphinx, and Blinded sphinx moths were also spotted last month. A Pink striped oak worm moth was the best find of the month. This moth has only been collected in two other Iowa counties (Linn and Van Buren).
The summer mushroom season began on May 24 when I saw the first of the year Stalked scarlet cap, Entire Russula, and Deep root mushrooms. Along the West Creek bottom Eyelash cup, Scutellinia umbrorum, a small (.05-1 cm) orange cup fungus with a fringe of brown hairs was again fruiting on rotted wood. There is only one Iowa herbarium record of this mushroom (1903). It is probably overlooked because of its small size.
In the West Creek prairie remnant Bill and I were pleased to see a Bobolink breeding pair again this year. The Henslow's sparrow colony is also nesting there this year.


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- Featured Jobs
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- More About HD Supply
Company Overview:
HD Supply ( www.hdsupply.com ) is one of the largest industrial distributors in North America. The company provides a broad range of products and value-add services to approximately 500,000 customers with leadership positions in maintenance, repair and operations, water infrastructure and residential and non-residential construction sectors. Through approximately 500 locations across 48 states and six Canadian provinces, the company's approximately 13,000 associates provide localized, customer-driven services including jobsite delivery, will call or direct-ship options, diversified logistics and innovative solutions that contribute to its customers' success. With an active commitment to the communities in which we operate, HD Supply associates are part of a thriving organization that supports the virtues of wellness, diversity and inclusion – all of which are top priorities for the company. Equally as important is empowering our associates to grow professionally while providing competitive benefits and compensation. If you're ready to find a rewarding career and achieve your full potential with a growing industry leader, HD Supply is ready for you!
Job Description & Qualifications:
Job Summary
Responsible for the sale of products/services by prospecting new customers and enhancing sales or services to existing accounts through direct field sales representatives. This position requires operation of a Company Vehicle or a Personal Vehicle and such operation is done consistently more than 20% of the average work week. If selected for this position, HD Supply will run a Motor Vehicle Record (MVR) report. A requirement of this position is an acceptable MVR report.
Major Tasks, Responsibilities and Key Accountabilities
Develops and implements sales plans to achieve sales goals.
Prepares regular and special reports reflecting activity and results of the sales effort.
Reviews inventory and sales records, develops merchandising techniques, and coordinates sales promotions.
Performs routine visits with our clients and must be able to handle any disputes or problems that may arise.
Trains and familiarizes new Sales Representatives with established policies, practices, products and services.
Trains sales associates in effective selling processes and techniques.
Supervises associates including selection, training, coaching, and mentoring to develop associates.
Shares market and competitor information with all applicable channels within the organization; establishes relationships and working partnerships with all levels of the organization. Nature and Scope
Experience provides solutions.
Ensure that work is performed consistently with HD Supply policies and procedures.
Leads a group or team of support, craft, or lower level professional associates. Work Environment
Most of the time is spent sitting in a comfortable position and there is frequent opportunity to move about. On rare occasions there may be a need to move or lift light articles.
Located in a comfortable indoor area. Any unpleasant conditions would be infrequent and not objectionable.
Typically requires overnight travel less than 10% of the time. Minimum Qualifications
Must be eighteen years of age
Must pass the Drug Test
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Must pass pre-employment tests if applicable Education and Experience
Typically requires BS/BA in related discipline. Generally 5+ years experience in related field. May require certification. Advanced degree may offset less experience in some disciplines.
Preferred Qualifications & Job Specific Details:
Join our world-class sales leadership team in the Property Improvement, Hospitality division! As a Regional Sales Supervisor, you will lead a team of 5-10 field sales representatives who drive the continued growth of our Property Improvement division with our Hospitality B-B customers. You will coach, mentor and lead First Choice sales initiatives.
5+ years sales experience in the Hospitality industry.
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Proficiency in MS Excel and Salesforce.com or similar CRM.
Strong, proven success meeting or exceeding sales goals in a remote environment.
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Job ID 2016-20144
Business Unit Facilities Maintenance
Posted Date 11/21/2016
Functional Area Sales
Job Locations US - GA - Atlanta
US - NY - New York
US - FL - Orlando
Remote Position? No
Position Type Full-Time


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Here are some shots we took the other day on our porch.Just got back from vacation at the beach.Took some good pictures one morning at sunrise you might like? Thanks again for all the nice comments last month over 500. You all are great!!!
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New Energy Department competition to help rural Alaskan communities save energy and fight climate change.
The White House brought together tribal leaders from federally recognized tribes to participate in the 7th Annual White House Tribal Nations Conference on Nov. 5, 2015.
Retha Herne is Executive Director of the Akwesasne Housing Authority (AHA) in Hogansburg, New York. With the highest energy costs in the state of New York, the tribe is looking to alternative energy sources to help sustain the community for the long term.
Leading the Charge is a regular feature spotlighting the movers and shakers in energy development on tribal lands.
In May 2015 I began serving as Director of the U.S. Department of Energy's Office of Indian Energy. Since then, I've crisscrossed the country visiting American Indian and Alaska Native communities that face a variety of pressing energy challenges.
More than 450 representatives from tribal and state governments, federal agencies, tribal corporations, private industry, utilities, and academia came together to explore tribal energy development and security issues at the National Tribal Energy Summit: A Path to Economic Sovereignty, held Sept. 23–25, 2015, in Washington, D.C.
Over the past year, DOE Office of Indian Energy staff have traveled throughout the contiguous United States and Alaska to help build capacity, deliver energy project technical assistance, and provide information sharing opportunities to tribal communities.
Cities like Boston and Minneapolis have identified ways to reduce their carbon footprint by as much as 80 percent by 2050.
President Obama's closing thoughts on his three-day journey in Alaska.
As members of the U.S. Department of Energy (DOE) Office of Indian Energy's technical assistance team, Sherry Stout and Jared Temanson of DOE's National Renewable Energy Laboratory (NREL) recently traveled to the Native village of Rampart, Alaska, to fulfill the Tribe's request for technical assistance with strategic energy planning.
1000 Independence Ave. SWWashington DC 20585202-586-5000


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This event is closed. If you have any questions, please contact the event planner directly.
Critical Financial Skills for Hospital Success
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Question: What does kidney yang deficiency mean?

My traditional Chinese medical practitioner said that I have kidney yang deficiency. How do people get this imbalance? What does it mean? - Vickie

Answer:

In traditional Chinese medicine (TCM), some of the symptoms of kidney yang deficiency are frequent urination, difficulty urinating, and edema, symptoms that require medical attention.

Your family doctor should be informed of any symptoms you're experiencing. If you haven't consulted him or her, that should be the first step, because alternative therapies should not replace conventional care.

Not everyone with kidney yang deficiency experiences these symptoms. In TCM, the kidneys have a broader role than the kidneys in Western physiology.

They are also involved in adrenal function, which is why some of the symptoms of kidney yang deficiency are cold limbs, lack of energy, and sexual dysfunction. Temperature, energy, and sexual function are regulated in part by the adrenal hormones.

It's important to consult your physician if you have any health concerns. Self-treating a health condition and avoiding or delaying standard care may have serious consequences.
More:

Kidney Yang Deficiency - Symptoms, Related Conditions, and Diet

More Chinese Medicine Patterns

Disclaimer: The information contained on this site is intended for educational purposes only and is not a substitute for advice, diagnosis or treatment by a licensed physician. It is not meant to cover all possible precautions, drug interactions, circumstances or adverse effects. You should seek prompt medical care for any health issues and consult your doctor before using alternative medicine or making a change to your regimen.


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Pearson plc (PSON) Rating Reiterated by Jefferies Group
Pearson plc (LON:PSON)'s stock had its "buy" rating reiterated by analysts at Jefferies Group in a research note issued on Tuesday. They currently have a GBX 880 ($10.89) target price on the stock. Jefferies Group's target price indicates a potential upside of 8.31% from the company's previous close.
Several other equities research analysts have also weighed in on the stock. Numis Securities Ltd lowered shares of Pearson plc to a "sell" rating and set a GBX 710 ($8.79) price objective on the stock. in a research note on Friday, July 29th. Deutsche Bank AG reiterated a "sell" rating and set a GBX 770 ($9.53) price objective on shares of Pearson plc in a research note on Tuesday, September 13th. BNP Paribas lowered shares of Pearson plc to a "neutral" rating and dropped their price objective for the stock from GBX 1,000 ($12.38) to GBX 900 ($11.14) in a research note on Thursday, September 22nd. Goldman Sachs Group Inc. reiterated a "sell" rating on shares of Pearson plc in a research note on Tuesday, September 27th. Finally, Barclays PLC reiterated an "equal weight" rating and set a GBX 920 ($11.39) price objective on shares of Pearson plc in a research note on Wednesday, August 31st. Seven research analysts have rated the stock with a sell rating, seven have assigned a hold rating and ten have assigned a buy rating to the company. The stock has a consensus rating of "Hold" and an average target price of GBX 915.14 ($11.33).
Shares of Pearson plc (LON:PSON) opened at 822.50 on Tuesday. Pearson plc has a 52 week low of GBX 644.50 and a 52 week high of GBX 1,227.00. The stock's market cap is GBX 6.70 billion. The stock's 50 day moving average price is GBX 810.42 and its 200 day moving average price is GBX 854.13.
The business also recently announced a dividend, which was paid on Friday, September 16th. Shareholders of record on Thursday, August 18th were given a GBX 18 ($0.22) dividend. The ex-dividend date of this dividend was Thursday, August 18th. This represents a yield of 2.04%.
In related news, insider Vivienne Cox bought 289 shares of the business's stock in a transaction on Friday, September 30th. The stock was bought at an average price of GBX 737 ($9.12) per share, for a total transaction of £2,129.93 ($2,636.05). Also, insider Melinda Wolfe sold 25,746 shares of the stock in a transaction that occurred on Monday, October 3rd. The stock was sold at an average price of GBX 759 ($9.39), for a total transaction of £195,412.14 ($241,846.71).
About Pearson plc
Pearson plc (Pearson) is an international education and media company. The Company has operations in the education, business information and consumer publishing markets. The Company operates through three segments: North America, Core and Growth. The North American business serves educators and students in the United States and Canada from early education through elementary, middle and high schools and into higher education with a range of products and services, such as courseware, assessments and services.
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text: I jailbroke my iPod Touch on firmware 2.0.1 (using QuickPwn, if anyone was wondering), but never got around to pwning 2.0.2. Since I'll lose all my JB apps either way (either upgrading to 2.0.2 then pwning, or upgrading to 2.1), which would you guys recommend? Stupid question? Maybe, but I really can't decide Please Register or Log in to view images


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Great 1 Bedroom near SW OSU Medical Center! - Just off Neil Avenue with big front porch and a quiet back yard. There are spacious closets and a decorative fireplace. A short walk from the OSU Medical Center. This residence has central air to keep you cool, a washer and dryer in the basement, and off-street parking available.
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How does search store auto-generated numbers in the index?
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1. Expertise in C#, XAML and MVVM architecture of Window 8.1 Phone development
2. Experience in Windows 8/8.1 Mobile App development.
3. Experience in .NET or WPF application development would be a plus.
4. Developer should be capable of working in a agile (scrum) development project.
5. Developer should be able to grasp the functional requirements, prepare the technical approach for implementation & carry out the development.
6. The developer should be willing to do peer-code-review & write unit tests.
7. Should be conversant with integration of REST Services in C# code.
8. Knowledge of design patterns, reusability, extensibility and maintainability of code would be a plus.


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Welcome, skip to the content.
Night Paintball is available for ages 16 and above.
Australia's Only Outdoor Glow in the Dark Paintball facility with unique patented technology.
Night Paintball is the perfect choice for group experiences from school and work or business groups to team building programs, sporting clubs and all celebrations including birthdays, bucks and hens. Grab a group of mates together and experience the thrill.
Amenities included are showers, toilets, change rooms, air conditioning and now with licensed Bar. For more information, please visit the website.
Or use the facilities and function area with gaming consoles or display televisions for your next new product launch.


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2583 sq.ft Built Up Area 1678 sq.ft Carpet Area Office Space Available with 1 Car Parking for Sale.Building with a unique elevation and Centrally located having connectivity from JVLR and Andheri Kurla Road.Jogeshwari-Vikhroli link road and well connected to the western express highway, Lbs marg, Saki naka, Midc, Seepz, International and domestic airports and in the vicinity lies hotels, Restaurants, Metro station and other recreational facilities.
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Black Brushed Teddy Harem Pants by Mingo Kids
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We Recommend
100% Beef Aminos - 400 tablets
27,99 € tax incl.
29,99 €
|-3,36 €
|¡24,63 €!
Effect: repair and build
Capsule / s with a glass of water
Two capsules
From one to three times a day
With meal/ s
Gain muscle mass
Estimated reception
Notify me when available
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Vitamin A
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3 g
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una fuente de aminoacidos muy buena, es mejor que comer carne roja con frecuencia ya que esta tiene mucha grasas saturadas,
bueno aminoácidos, muy notables
Es de los pocos qe se nota el efecto muy bueno esencial para entrenar
Es un producto que me preserva la masa muscular y junto a unas proteínas es ideal.
Aunmenta pero en bastante tiempo es simplecillo xro para gente que esta delgada y esta empezando a coger volument esta bien xra empezar
Grande prodotto soprattutto in fase di definizione aiuta ha mantenere la massa muscolare e aumenta la forza.
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Do you advises your friends in the gym?
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Researching and installing new systems with an experience of at least 1 end-to-end SAP implementation, one of the projects having been delivered in the role of module project lead.
Seeking ways to apply technology to business processes, with specialization in at least one of the core modules of MM, SD, FICO, HR.
Documents the settings and prepares proper guidelines that allow other consultants to do further changes or repairs with due efforts.
Ensures that proper training is given to the users and that the system is usable, performing appropriately and the business flow is complete and correct.
Assists the technical staff by testing the behavior of the system.
Ensures that the procedures remain usable and consistent in real live situation and proposes enhancements.
Transfer external know-how to the client.
Researches and provides information on technical trends.
Understanding how quality guidelines are managed during SAP delivery.
Consults with program/project management to develop appropriate technical solutions.
Provides database design, development and enhancement, as well as management and coordination of changes to existing applications.
Provide technical architecture analysis, design, development and enhancement.
Conduct comprehensive cost/benefit analysis and prepare business cases for projects.
Develops costing proposals for projects, perform risk analysis and manage change control.
Provide business analysis, business area assessment, user need analysis and business systems design for major projects.
Ensures the Group develops and executes solutions ahead of expectations.
Keeps up to date with the latest technologies.
Deliver training presentations to employees to better understand how to get the full benefit of the technological applications.
Capable of managing difficult project situations.
Understanding of ABAP in addition to specialization on any one or more modules.
Produces periodic reports detailing implementation processes.
Periodically reviews the technology and provides recommendations for system improvements.
Identify and stay abreast of current drivers and trends, including best practices and international standards.
Manages client account internally (conduct monthly account management meetings, prepare reports and informs Management and employees on key issues).
Manages and mentor junior staff working on assigned accounts
Employer want to submit job applications through their website at: http://careers.alsayeronline.com/en/job-search-results/"> class="last" style="outline: none; margin: 0px; padding: 0px; border: 0px; font-style: inherit; font-variant: inherit; font-weight: inherit; font-stretch: inherit; font-size: inherit; line-height: inherit; font-family: inherit; vertical-align: baseline;">Apply" class="" style="color:blue" target="_blank" rel="nofollow">http://careers.alsayeronline.com/en/job-search-results/">Apply Online
Your Spare Time Ea...
Agriculture Manpow...


text:
Update: Square replied to a customer on 12/9, and according to the email (copied below) the fix is coming in a month. A month! Doesn't that just give you that warm and fuzzy pre-order feeling?
Thank you for contacting SQUARE ENIX support,
We apologize for the trouble and inconvenience you have been experiencing. There has been reported issues similar to this concern and we are glad to inform you there should be a patch incoming later this month that resolves the issue. Please be sure to be connected online as the patch/update will begin by itself once it's available. If you run into any other questions or concerns, please do not hesitate to report it on the official FINAL FANTASY XV Forums.
It's obnoxious when you fire up a new game and get that TV zoom calibration screen, but it's an even bigger nightmare when it chops off your game and you can't do anything about it. Such is the case for some Final Fantasy XV players miffed at Squenix for not fully supporting their still-damn-good older televisions. The number of affected players is difficult to determine, but there are at least hundreds pissed-off unique snowflakes hitting the forums for over a week.
It's not just "a little text off to the right" being cut. Some people can't see their MP bar at all. It's bad. A patch is supposed to be finally hitting any day now, according to this forum update made on December 7th, but some people still continue to be affected by this issue. Funny enough, this particular poster might be confused with roman numerals and was posting about FFX Remaster, which makes Square's reply even more puzzling. What's going on here?... read more


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Fire Fire!
A fire alarm at the International Space Station went off last week and it got us thinking, what would happen? Where would you go for the register?
I got caught out by the fire alarm while making toast. I put my bread in the toaster and went off for a quick loo break only to hear the alarm start going off while I was still in the gents!
Klara in Bushey had a similar story when her housemate set the fire alarm off making toast right in the middle of Klara's shower! She had to go out in to the car park with nothing but a towel to cover her modesty!
Karen in Highfield got caught out while trying on a slightly to small onesie in the changing room and Paul got called outside in just his pyjama bottoms in front of his friend's mum!
But Michelle in Hemel had the best story of all, listen again below!
Daniel x
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