IN RE PARIS AIR CRASH OF MARCH 3, 1974

• Decision Date: 01 August 1975
• Docket Number: MDL No. 172.
• Citation: 399 F. Supp. 732
• Court: U.S. District Court — Central District of California
• Parties: In re PARIS AIR CRASH OF MARCH 3, 1974.

399 F. Supp. 732

In re PARIS AIR CRASH OF MARCH 3, 1974.

MDL No. 172.

United States District Court, C. D. California.

August 1, 1975.

COPYRIGHT MATERIAL OMITTED

James G. Butler, Los Angeles, Cal., Lee S. Kreindler, New York City, Gerald C. Sterns, San Francisco, Cal., co-lead counsel, Wm. Marshall Morgan, Los Angeles, Cal., liaison counsel, Donald W. Madole, Chairman, Washington, D. C., Daniel C. Cathcart, Los Angeles, Cal., Richard D. Krutch, Seattle, Wash., discovery committee.

F. Lee Bailey, New York City, and Aaron J. Broder by Seymour Madow, New York City, Butler, Jefferson & Fry by James G. Butler, James M. Jefferson, Jr., Robert P. Fry, Michael A. K. Dan, Los Angeles, Cal., Goldfarb & Singer, Washington, D. C., Green, Royce & Seaman by Irving H. Green, Hodge & Hodges by John R. Skoog, Los Angeles, Cal., Horgan & Robinson by Mark P. Robinson, Los Angeles, Cal., Kreindler & Kreindler by Lee S. Kreindler, Melvin I. Friedman, Marc S. Moller, New York City, Krutch, Lindell, Donnelly, Dempcy, Lageschulte & Judkins, P. S. by Richard D. Krutch, Vernon T. Judkins, Seattle, Wash., Lewis, Wilson, Cowles, Lewis & Jones, Ltd. by Richard H. Jones, Arlington, Va., McGrail & Nordlund by Joseph V. McGrail, Washington, D. C., Magana & Cathcart by Daniel C. Cathcart, James J. McCarthy, Los Angeles, Cal., Morgan, Wenzel & McNicholas by Wm. Marshall Morgan, Los Angeles, Cal., David Noble, Los Angeles, Cal., Paul, Weiss, Rifkind, Wharton & Garrison by Joseph S. Iseman, John J. O'Neil, New York City, Ray, Quinney & Nebeker by Marvin J. Bertoch, L. Ridd Larson, Salt Lake City, Utah, Shahin & Wawro by James Wawro, Sherman & Schwartz, Inc. by Arthur Sherman, Beverly Hills, Cal., Speiser & Krause by Stuart M. Speiser, Charles F. Krause, New York City, Speiser, Krause & Madole by Donald W. Madole, Washington, D. C., Walkup, Downing & Sterns by Gerald C. Sterns, Thomas G. Smith, Terence J. O'Reilly, San Francisco, Cal., Walsh & Levine by Laurence W. Levine, New York City, for plaintiffs.

Gibson, Dunn & Crutcher by Robert Forgnone, Los Angeles, Cal., Kirtland & Packard by Robert C. Packard, Jacques E. Soiret, Los Angeles, Cal., Mendes & Mount by James M. FitzSimons, Joseph J. Asselta, New York City, Tuttle & Taylor by William A. Norris, Joseph R. Austin, Marilyn T. Clare, Andrew Schepard, Charles Rosenberger, Los Angeles, Cal., for McDonnell Douglas Corp.

Overton, Lyman & Prince by Fred S. Lack, Jr., Ernest E. Johnson, Brenton F. Goodrich, Gregory A. Long, Los Angeles, Cal., for General Dynamics Corp.

Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for Brackett, Inc., and Fireman's Fund Ins. Co.

Adams, DuQue & Hazeltine by Thomas F. Call, Los Angeles, Cal., Condon & Forsyth by George N. Tompkins, Jr., Desmond T. Barry, Jr., Frank A. Silane, New York City, Latham & Watkins by Philip F. Belleville, A. Vic-Los Angeles, Cal., McKenna & Fitting by Daniel N. Belin, Los Angeles, Cal., Milbank, Tweed, Hadley & McCloy by Edward J. Reilly, Russell E. Brooks, New York City, Shaw, Pittman, Potts & Trowbridge by Phillip D. Bostwick, Jay H. Bernstein, Washington, D. C., for Turkish Airlines, Inc.

William D. Keller, U. S. Atty., Los Angeles, Cal., James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., John Laughlin, Herbert L. Lyons, Sp. Attys., Torts Section, Aviation Div., Dept. of Justice, Neil Eisner, Federal Aviation Administration, Washington, D. C., for the United States.

MEMORANDUM OF OPINION IN RE CHOICE OF LAW ON DAMAGES

PEIRSON M. HALL, Senior District Judge.

Before getting to the points involved in the several motions, a general statement concerning this Aegaéonic¹ case is in order.

On March 3, 1974, shortly after takeoff from Paris, France, a Douglas DC-10 passenger airplane owned and operated by Turkish Air Lines² crashed in France, destroying the plane and killing all human occupants (346) aboard, 13 of whom were crew.³ The number of dependents and claims are unknown, but unofficial estimates have placed that number at about 1,000.

There are 203 suits involving 337 decedents arising from that crash pending in this court. One hundred ninety-one were initially filed here and transferred to the undersigned judge under our local "low-number" rule. Ten were transferred here from other districts under 28 U.S.C. § 1407 by the Judicial Panel on Multidistrict Litigation and given MDL Docket No. 172. Each of the 203 suits have cross-claims, third-party complaints, or counterclaims, some amended as many as three or four times. All the cross-claims have numerous special defenses, one as many as 20. All of the local and transferred cases were assigned MDL Docket No. 172, and the undersigned judge was designated by the MDL Panel under 28 U.S.C. § 1407.

THY filed one suit in this court (CV-74-1526-PH) for $35,000,000+ for hull damage and loss of use and for contribution or indemnity. It was transferred to the undersigned judge for all purposes under our local rules and is consolidated with MDL 172. Among its causes of action, THY has one for strict product liability against McDonnell Douglas and General Dynamics. McDonnell Douglas has cross-claimed in that case for contribution and indemnity against THY, exculpating itself and claiming that the sole cause of the crash was THY, as has General Dynamics, which cross-claimed against McDonnell Douglas and THY and counterclaimed against McDonnell Douglas's third-party complaint against General Dynamics.

That case and all the other cases have been separated on the issue of liability from damages and consolidated with the lead cases and with each other for discovery and related matters.

A deposition discovery schedule on liability and an exhibit depository were set up shortly after the cases were filed. The schedule required that beginning in July, 1974, the parties would spend two weeks on and one week off on depositions, which schedule they have quite rigidly held even though the lawyers on the Plaintiffs' Discovery Committee and defense counsel come from New York, Washington, D.C., State of Washington, and other distant places. Even so, the Court's latest information is that only 12 witnesses were completed by the end of May.⁴ Discovery on damages commenced in each case upon filing and has proceeded apace with all the tools of discovery except depositions.

Several motions, each important enough to require one full week of argument, have been made. Some have been acted upon, and some have not. Some of the plaintiffs made a motion for a partial summary judgment on liability, which, after full argument and briefs, was denied from the bench. The Court has written no memorandum upon that decision delineating its reasons because it felt that the less said by the Court on that subject, the better. The plaintiffs have a right to renew the motion, and neither side should be prejudiced by a determination of what facts are or are not material or what facts to support a judgment exist without genuine issue.

All of the motions have been copiously documented and excellently briefed and argued. But the questions are so numerous that, it seems, before one set of arguments and briefs can be read and thought through, another critical matter requiring the Court's immediate attention has arisen. The matters submitted and not yet decided concern the constitutionality and application of the Warsaw Convention of 1929, the Hague Protocol, and the Montreal Agreement; the value of gold French francs of 1929 to be considered as against the official value of the gold French franc today, if the Warsaw Convention applies; separate trial of issues and parties; applicability of the California Consumer Credit Act; a motion for summary judgment by defendants against the plaintiffs' claim for punitive damages; and choice of law on liability and damages.

Opinions were in various stages of preparation on all of said subjects until May 27 and 29, 1975, when McDonnell Douglas, General Dynamics, and THY announced in open court that they had informally just agreed to a formula among themselves for sharing all damages so that the matter of liability need not be litigated, but that all claims could be disposed of by settlement, or trial, on the issue of damages. Certain conditions were attached, and the matter was continued so that the agreements could be formalized. But more of that later.

As to the Warsaw Convention and its corollary questions, the Court deferred decision because the Supreme Court has repeatedly said that a constitutional question should not be decided until it is necessary; and it may not be necessary in this case to decide the constitutionality or validity or application of the Warsaw Convention, the Hague Protocol, or the Montreal Agreement, or of any one of them. At least it is not necessary at this time, for reasons which would be inappropriate to mention here and now.

Motions were heard and submitted on the right to punitive damages, decision on which also is not necessary at this time.

The United States filed a motion to dismiss all of the plaintiffs' complaints on the ground that the accident occurred in France and that, under 28 U.S.C. § 2680(k), it could not be sued under those terms of the Tort Claims Act which provide:

"The provisions of this chapter and section 1346(b) of this title shall not apply to —

(k) Any claim arising in a foreign country."

All of the acts or failures to act of the United States upon which plaintiffs rely are alleged in the complaints to have occurred in the United States, in the State of California, by the wrongful approval, certification, inspection, and the like, of the plane, or the failure to do so, by the United States, and by its failure to require changes in the structure of portions of the plane and follow-through before and after delivery of it, even though those acts or failures came to fruition in another state or in a foreign country. Roberts v. United States, 498 F.2d 520, 522, fn.2 (9th Cir. 1974): "Under the FTCA, a tort claim arises at...