Whether state law prohibitions on hedonic damages apply to 42 U.S.C. § 1983 survival claims

QUESTION PRESENTED In Robertson v. Wegmann, 436 U.S. 584, 589-90 (1978), the Court held that Congress had not addressed survival of claims under 42 U.S.C. § 1983, and hence under 42 U.S.C. § 1988, the survivorship law of the forum state must be applied to such claims unless inconsistent with the purposes of § 1983. California, like 44 other states, does not allow recovery of hedonic damages, i.e., damages for the decedent’s loss of enjoyment of future life. In affirming a $13.2 million damage award to respondents in their § 1983 and state wrongful death action, the Ninth Circuit declined to apply California law with respect to the award of $3.6 million in hedonic damages. Eleven Circuit Judges expressed the view that en banc review was warranted, because the panel decision was inconsistent with Robertson, and the purposes of § 1983 were not served by permitting recovery of highly abstract, speculative damages for a loss not actually experienced by the decedent. The question presented by this petition is: Under Robertson v. Wegmann, 436 U.S. 584 (1978) must a federal court apply a state law prohibition on hedonic damages to a 42 U.S.C. § 1983 survival claim as the Sixth Circuit held in Frontier Ins. Co. v. Blatty, 454 F.3d 590, 60103 (6th Cir. 2006), or is a limitation on such damages inconsistent with the purposes of § 1983, as held by the Ninth Circuit here and the Seventh Circuit in Bell v. City of Milwaukee, 746 F.2d 1205, 1239 (7th Cir. 1984)?