*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 95-30085

Summary Calendar

 _____________________

JEANNE M. KELLY, Individually and

as personal representative of the

estate of Captain James J. Kelly,

and on behalf of her minor child,

James Joseph Kelly, III,

Plaintiff-Appellee,

versus

THE PANAMA CANAL COMMISSION,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for

the Eastern District of Louisiana

(CA 92 1733 G)

_______________________________________________________

August 16, 1995

Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.

PER CURIAM:*

The Panama Canal Commission (the "Commission") appeals a

judgment rendered against the Commission in a wrongful death

action brought by the widow and son of Captain James Kelly. 
2

Captain James Kelly, a United States Army Officer assigned

to duty in the Republic of Panama, was killed while

recreationally sailing when the mast of his catamaran struck a

hanging electrical wire. His widow sued the Commission on behalf

of herself and her son (the "Kellys"). The district court found

the Commission liable for Captain Kelly's death and awarded the

Kellys $10,000 for Captain Kelly's pain and suffering, $150,000

to Jeanne Kelly and $170,000 to James Kelly III for loss of

society and $578,846.66 each to Jeanne and James. On appeal,

this court affirmed the finding of liability, but vacated the

nonpecuniary damage awards and remanded the action with

instructions to "make additional findings to specify the wage

base it used to compute the loss of support item and, if

necessary, conform the award to the evidence." Kelly v. Panama

Canal Commission, 26 F.3d 597 (5th Cir. 1994). This court left

the possibility of reopening the record to take more evidence to

the district court's discretion. 

On remand, the district court concluded that it was

unnecessary to reopen the record. The court recomputed the lost

wages component, relying on the report of Edwin C. Schilling III,

the Kellys' expert on military service retirement systems and

financial calculations. The Commission had not objected to the

computations in this report and did not offer an alternative

calculation of Kelly's future earnings. The Commission appeals

the new damage award. The Commission contends that the court

erred in assuming that Captain Kelly would have been promoted
3

before retirement and in assuming that the Captain would have had

a post military career. The Commission also objects to the award

because the court did not deduct veteran's benefits accruing to

the Kellys under the Veterans' Benefits Act or deduct payments

made to social security. 

The district court relied on the Kellys' expert witness'

report for its assumptions regarding Captain Kelly's future

promotions in the military and post military employment. As the

district court noted, the Commission did not submit any evidence

regarding Captain Kelly's future promotions or post military

employment. The Commission stipulated to the report and did not

cross examine Colonel Schilling. The only objection made by the

Commission to the report was that it assumed a promotion which

had been designated but not yet fully processed. The court's

adoption of Schilling's assumption that this promotion would have

been properly processed and put into effect was not clearly

erroneous. 

The district court did not err is accepting Schilling's

expert opinion and the evidence demonstrating Captain Kelly's

excellent credentials in assuming that Kelly would have received

future promotions and would have had a post military career. 

The Commission also contends that the award to the Kellys

was incorrect because the court did not deduct veteran's benefits

received by the Kellys. The Commission failed to submit any

evidence to the trial court regarding the amount or character of

the benefits received by the Kellys. The Commission did not
4

cross examine Schilling regarding veteran's benefits. Indeed,

the Commission made no formal objection to the failure to deduct

veterans benefits. Pickle v. Int'l Oilfield Divers, 791 F.2d

1237, 1241 (5th Cir. 1986)(holding that the right to deductions

for veteran's benefits waived if not properly raised in the trial

court). In its trial brief, the Commission made a vague

assertion that any recovery on the part of the Kellys would be

redundant because the Commission is a government agency. This

assertion did not adequately raise the issue of accounting for

the Kellys' veteran's benefits. 

The Commission also contends that the award was incorrect

because the court did not deduct social security taxes. In

accepting the computations of future earnings of Colonel

Schilling, the court noted that Schilling had allowed for a 6.5%

FICA deduction. This allowance is indicated in Schilling's

report. The Commission points to no evidence contradicting this

clear indication that the court did allow for social security tax

deductions in its award.

AFFIRMED.