216 F.Supp. 709 (D.Nev. 1962), Civ. 1817, United States v. United Air Lines, Inc.

Docket Nº:Civ. 1817
Citation:216 F.Supp. 709
Party Name:United States v. United Air Lines, Inc.
Case Date:November 14, 1962
Court:United States District Courts, 9th Circuit, Eastern District of Washington
 
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Page 709

216 F.Supp. 709 (D.Nev. 1962)

UNITED STATES of America and Leila E. Pebles, Administratrix of the Estate of Frank R. Pebles, Deceased, Plaintiffs,

v.

UNITED AIR LINES, INC., a Delaware Corporation, Defendant.

UNITED STATES of America, Marjorie I. Matlock, and Mardale Matlock, by her Guardian ad Litem, Marjorie I. Matlock, Plaintiffs,

v.

UNITED AIR LINES, INC., a Delaware Corporation, Defendant.

UNITED STATES of America, Catherine D. Nollenberger, and Lawrence P. Nollenberger by his Guardian ad Litem, Catherine B. Nollenberger, Plaintiffs,

v.

UNITED AIR LINES, INC., Defendants.

UNITED STATES of America, Frances Lovina Thompson, Pernita C. Thompson, MiltonLe Roy Thompson, and Phillip Edward Thompson, by their Guardian ad Litem, Pernita C. Thompson, Plaintiffs,

v.

UNITED AIR LINES, INC., a Delaware Corporation, Defendant.

UNITED STATES of America, Myrtle C. Theobald, and Carol Ann Theobald and Theresa Kay Theobald, by their Guardian ad Litem, Myrtle C. Theobald, Plaintiffs,

v.

UNITED AIR LINES, INC., a Delaware Corporation, Defendant.

Dwight M. BLACKWELDER, Jr., Executor of the Estate of Dwight M. Blackwelder, Deceased, Plaintiff,

v.

UNITED STATES of America and United Air Lines, Inc., a corporation, Defendants.

Warren G. KLEHFOTH, Executor of the Estate of Clara A. Klehfoth, Deceased, Plaintiff,

v.

UNITED AIR LINES, INC., a corporation, and the United States of America, Defendants.

Faith C. PARIS, as Executor of the Estate of Steve Paris, Deceased, Plaintiff,

v.

UNITED AIR LINES, INC., a corporation, Defendant.

Mary F. DARMODY, Administratrix of the Estate of Robert E. Darmody, Deceased, Plaintiff,

v.

UNITED AIR LINES, INC., a Corporation, Defendant.

Civ. Nos. 1817, 489 (Nevada), 297, 318, 320, 322, 324, 328, 1444 (CarsonCity), 487.

United States District Court, E.D. Washington, Northern Division United States District Court D. Nevada.

Nov. 14, 1962

Summary Judgment Procedure Dec. 7, 1962.

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[Copyrighted Material Omitted]

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Frances C. Whelan, U.S. Atty., Donald Fareed, Asst. U.S. Atty., Los Angeles, Cal., for United States.

Ross & O'Connor, Boyle & Hetzner, Omaha, Neb., for Mary F. Darmody-- Case No. 487.

Belli, Ashe & Gerry, Los Angeles, Cal., for Faith C. Paris-- Case No. 1444.

Harvey Erickson, Spokane, Wash., for Leila R. Pebles-- Case No. 489.

Johnson & Ladenberger and Margolis & McTernan, Los Angeles, Cal., for plaintiffs Matlock, Case No. 297; plaintiffs Nollenberger, Case No. 318; plaintiffs Thompson, Case No. 320; and plaintiffs Theobald, Case No. 322.

Chase, Rotchford, Downen & Drukker, Los Angeles, Cal., for United Air Lines.

HALL, District Judge.

The instant matters get before the undersigned by virtue of his assignment,

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under 28 U.S.C. § 292(b), to the Eastern District of Washington where the Pebles case is pending, and to the District of Nevada where the remainder of the above entitled cases are pending, and by virtue of an Order made by the regular Judges of the Eastern District of Washington and an Order made by the regular Judges of the District of Nevada transferring all further proceedings in the instant cases to the undersigned.

To better point up the matters under consideration, a brief statement concerning the origin of these and other lawsuits growing out of the same mid-air collision is appropriate.

On April 21, 1958, at about the hour of 8:30 in the morning, a United Air Lines plane, flying its regular passenger run in the vicinity of Las Vegas, Nevada, and a United States Military F-100-F Jet plane collided in mid-air, killing all of the 42 passengers on the United Air Lines plane, the five members of the United Air Lines crew, and the two Air Force pilots in the Military Jet. Suits by the survivors of those killed in the accident were filed within the appropriate statutory periods in 11 different jurisdictions in the United States, and a suit was filed by United Air Lines against the United States, with a Cross-claim by the United States, in the District of Delaware for hull damage only. In the Ninth Circuit, 24 of the suits by survivor-heirs of some of the passengers who were killed were filed in the Southern District of California (22 against both the United Air Lines and the United States of America, two against United Air Lines only), seven in the District of Nevada, and one in the Eastern District of Washington.

Among them as plaintiffs in the Washington, Nevada and California cases were 17 widows with a total of 48 minor children from four months of age to 20 years, as well as other survivor-spouses and 14 children over majority.

Other suits by survivors were filed in the United States District Courts in Colorado, Florida, Iowa, Massachusetts, Missouri, Nebraska, New Jersey, New York, and one-- the Parts case filed in the Northern District of Illinois-- was later transferred to the District of Nevada and is one of the cases involved in the instant motions.

In view of the fact that, except for two very young school children who witnessed the accident from the ground, there were no eye witnesses, and that the plaintiffs had to prove their case 'out of the defendant's mouth,' discovery proceedings have been exceedingly extensive, expensive, and burdensome in time and effort. The discovery proceedings, whether depositions, interrogatories, or request for admissions, or inspection of documents and things, were noticed to the parties in all the instant suits (except Paris) and in the suits pending in the Southern District of California.

To avoid having 24 separate protracted trials with the possibility of conflicting verdicts on the question of liability, and the inconvenience, expense and delays to litigants, the Court, in the Southern California cases, on March 29, 1960, made an order under Rule 42(a), Federal Rules of Civil Procedure, consolidating all of the cases pending in the Southern District of California for trial on the issue of liability, with the issue of damages in each case to be tried to separate juries (F.R.C.P. 42(b)). United Air Lines objected. The Court certified the question for an interlocutory appeal under 28 U.S.C. § 1292(b). On January 15, 1961, the United States Court of Appeals for the Ninth Circuit reversed the order of consolidation. The Nevada Wrongful Death Statute permits exemplary damages whether pleaded or not. The plaintiffs (appellees in the Appellate Court) filed waivers of exemplary damages in the Appellate Court on a request for rehearing which was denied on February 15, 1961. The Appellate Court held (9 Cir., 286 F.2d 302 at 306, cert. den. 366 U.S. 924, 81 S.Ct. 1352, 6 L.Ed.2d 384) that the issue of liability and damages, exemplary 'or normal' must be tried to the same jury. The parties indicated the evidence on liability would be the same in each case. (It is hard to see how

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it could be different), so instead of 24 separate trials, the Court again made an order consolidating the Southern California cases for trial on the question of liability to one jury (Rule 42(a), Federal Rules of Civil Procedure), with the question of damages to be tried separately as to each plaintiff to the same jury. (Rule 42(b), Federal Rules of Civil Procedure).

In spite of the efforts of the Court to do everything possible to bring about an expeditious trial and prevent delays in the Southern California cases, and in spite of the very great diligence of counsel in their conduct of discovery proceedings, a pre-trial order could not be framed and a definite trial date set until October, 1961, at which time the cases were set for trial on February 6, 1962. The time then estimated for trial on liability was six weeks, but actually took 15 weeks. The trial commenced in the cases pending in the Southern District of California on February 6, 1962, with trial to the jury of plaintiffs' cases against United Air Lines, trial to the Court on plaintiffs' cases against the United States of America, and trial to the Court on the Cross-claims of United Air Lines and the United States against each other for indemnity or contribution. The Court submitted certain interrogatories to the jury, in an advisory capacity, as to the United States. Verdicts holding United Air Lines liable, and answering the interrogatories against the United States were returned on May 26, 1962, and the Court announced that it would, and it did, adopt the findings of the advisory jury and held the United States liable also. The parties thereafter proceeded to try each case separately to the same jury as to damages. This necessarily resulted in a delay in the findings of fact and conclusions of law on liability as to the plaintiffs' claims against the United States, and as to the Cross-claims of the United States and United Air Lines against each other. The Court, on August 14, 1962, filed its Memorandum on said Cross-claims, holding the United Air Lines and the United States in pari delicto, and that each was entitled to contribution, but neither to indemnity.

The last of the cases pending in the Southern District of California was submitted to the jury on the question of damages, and a verdict against United Air Lines returned on August 31, 1962. At that time, the jury was directed to return into court on November 2, 1962.

Since August 31, 1962, the Court's time from day to day, until recently, has been almost completely consumed with the arguments on liability to the plaintiffs by the United States, and settlement by the Court in prolonged hearings with counsel of the many details necessary to be incorporated in findings of fact and conclusions of law as to liability and damages against the United States, and findings of fact and conclusions of law on the Cross-claims...

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