Friends for All Children, Inc. v. Lockheed Aircraft Corp.

• Citation: 241 U.S.App.D.C. 83,746 F.2d 816
• Decision Date: 12 October 1984
• Docket Number: No. 84-5213,84-5213
• Parties: , 46 A.L.R.4th 1113, 53 USLW 2227 FRIENDS FOR ALL CHILDREN, INC., as legal guardian and next friend of the named 150 infant individuals, et al. v. LOCKHEED AIRCRAFT CORPORATION, Appellant, United States of America.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 816

746 F.2d 816

241 U.S.App.D.C. 83, 46 A.L.R.4th 1113,

53 USLW 2227

FRIENDS FOR ALL CHILDREN, INC., as legal guardian and next friend of the named 150 infant individuals, et al. v. LOCKHEED AIRCRAFT CORPORATION, Appellant, United States of America.

No. 84-5213.

United States Court of Appeals District of Columbia Circuit.

Argued May 31, 1984.

Decided Oct. 12, 1984.

As Amended Oct. 12, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 76-00544).

Richard M. Sharp, Washington, D.C., with whom William F. Sheehan and Carroll E. Dubuc, Washington, D.C., were on brief, for appellant. William S. Moore, Washington, D.C., also entered an appearance for appellant.

J. Vernon Patrick, Jr., Birmingham, Ala., with whom Oren R. Lewis, Jr., Arlington, Va., and William M. Cohen, Washington, D.C., and Marvin H. Campbell, Montgomery, Ala., were on brief for appellees, Friends for All Children, Inc., et al. Richard H. Jones, Arlington, Va., also entered an appearance for appellees, Friends for All Children, Inc., et al.

Joseph E. diGenova, U.S. Atty. and Mark A. Dombroff, Dept. of Justice, Washington, D.C., entered appearances for appellee, U.S.A.

Before MIKVA, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge.

This is a tort action on behalf of Vietnamese orphans for injuries suffered in a tragic aviation accident in South Vietnam in 1975. The suit is over eight years old, and this appeal is the fourth before this court. Seven years after the action was filed, the District Court granted partial summary judgment on a motion on behalf of the Vietnamese children adopted by non-U.S. parents, holding that Lockheed was liable for the cost of diagnostic examinations of the children. Finding that approximately forty adopted Vietnamese children living in France faced irreparable injury unless they promptly obtained diagnostic examinations, the court entered a mandatory injunction pendente lite. The injunction ordered Lockheed to create a $450,000 fund from which reasonable expenses of diagnostic examinations would be paid.

The first of the two principal issues before us is whether the law of tort of the District of Columbia encompasses a cause of action for diagnostic examinations in the absence of proof of actual injury. Determining that such a cause of action does exist, we then turn to consider whether the existence of any material, disputed facts precludes the entry of summary judgment against Lockheed and whether partial summary judgment is likely to prejudice Lockheed in subsequent jury trials.

The second principal issue requires us to assess the propriety of mandatory preliminary injunctive relief in a common law tort action in which the defendant has already been adjudicated liable but where a trial to determine the amount of liability will be so long delayed that, in the interim, the plaintiffs face irreparable injury. Deciding that in the specific circumstances of this case such an injunction can be justified conceptually under general equitable principles, we then consider whether the injunction abridges Lockheed's constitutional rights to due process and jury trial. Determining that the injunction indeed passes constitutional muster, we then find that the order neither violates the terms of certain stipulations entered into in 1979 between the parties nor impermissibly shifts the cost of litigation to the defendant. Finally, we canvass the traditional factors requisite to the award of interim equitable relief. Upholding the District Court's determination that these factors favor issuance of the injunction, we affirm the judgment below. ¹

I

This appeal is another chapter in the protracted litigation arising out of an aviation accident during "Operation Babylift," a rescue mission for Vietnamese orphans undertaken in the last days of United States presence in South Vietnam. The tragic circumstances of the aircraft disaster are completely set out in Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (1981), cert. denied, 455 U.S. 994, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982), and need not be fully repeated here. Suffice it to say that on April 4, 1975, a Lockheed C5A Galaxy aircraft took off from Saigon en route to the United States. On board the ill-fated flight were 301 passengers, most of whom were Vietnamese orphans. Fifteen minutes after takeoff a locking system failed, causing the aft ramp and cargo doors to fall off the aircraft. The interior compartments of the plane thereupon suffered an explosive decompression and loss of oxygen. Immediately turning the aircraft back toward Saigon, the pilot attempted a crash landing, but on impact the aircraft shattered into four large pieces and countless fragments. Almost all the orphans and attendants in the cargo compartment of the aircraft were killed. However, 149 of the 152 orphans in the aircraft's troop compartment survived. Most of these orphans were infants at the time of this tragedy.

The next day the surviving orphans were flown to San Francisco where they were examined briefly by U.S. military physicians. They were then released to their adoptive parents, about half of whom were Europeans.

On April 2, 1976, an organization called Friends For All Children ("FFAC") filed a complaint in the United States District Court for the District of Columbia, alleging that Lockheed's negligent manufacture of the C5A aircraft was the cause of the disaster. FFAC claimed to be the legal guardian of the surviving children and alleged that as a result both of the decompression of the troop compartment and the crash itself, these survivors suffered, inter alia, from a neurological development disorder generically classified as Minimal Brain Dysfunction ("MBD").

Countering that negligent maintenance and operation of the aircraft by the U.S. Air Force had proximately caused the crash, Lockheed denied liability and impleaded the United States as a third party defendant. Both Lockheed and the Government then engaged in a variety of legal maneuvers aimed at securing dismissal of the suit. It is the duration of these preliminary skirmishes rather than their substance that is relevant to this case. ² At various times in 1978, the District Court rejected both the Government's and Lockheed's motions to dismiss, and the parties accordingly passed the rest of 1978 and 1979 engaging in discovery.

On December 6, 1979, over three years after suit was filed, the District Court approved the entry of various stipulations. The express purpose of these stipulations was to save "time and expenses of all parties and of the court," Preamble to Stipulation of Sept. 14, 1979, J.A. 72, and "to accomplish the fair and expeditious compensation of those children injured, without reference to fault or responsibility." Stipulation No. 10, J.A. 77. In the stipulation, the plaintiffs agreed not to seek punitive damages; in return, Lockheed agreed not to contest liability in all cases in which the parents or guardians filed amended complaints. ³ Second, the stipulations provided that Lockheed would pay to the guardian ad litem $5,000 for every child for whom an amended complaint was filed. The guardian ad litem enjoyed discretion to use these funds for the infants' "medical treatment" and "therapy" or for the "infant plaintiffs' litigation expenses." ⁴ Supplemental Stipulation of Sept. 12, 1979, J.A. 80.

The 1979 stipulations contemplated that three children would be selected for initial trials. Stipulation No. 11 of Sept. 14, 1979, J.A. 76. The parties and the court anticipated that the trial of these cases would, as frequently happens in such multi-party cases, provide the necessary information about probable litigation results so that settlements in other cases would likely follow. See Friends For All Children v. Lockheed Aircraft Corp., 87 F.R.D. 560, 562 (D.D.C.1980).

The "bellwether" cases contemplated by the stipulations all involved American-adopted children. Following jury trials, two of the plaintiffs, Schneider and Marchetti, secured judgments of $400,000 and $1,000,000 respectively. A third plaintiff, Zimmerly, received nothing for his MBD claim in his first trial, but a retrial ordered by the District Court resulted in a judgment of $500,000. ⁵ Those "bellwether" trials, however, did not result in swift settlement.

When it became clear that the bellwether trials were not going to result in a global settlement, the District Court suggested sua sponte that it would entertain motions (1) for summary judgment on the issue of Lockheed's liability for diagnostic examinations and medical treatment, and (2) for preliminary relief ordering Lockheed to pay for such examinations and treatment pendente lite. Responding to this suggestion, the plaintiffs thereafter moved both for summary judgment and interim equitable relief. The District Court held hearings on the plaintiffs' motions, but before the court issued a ruling, the parties entered into a tentative agreement that would have paid for certain of the plaintiffs' expenses for diagnosis and treatment. In early 1981, however, the Department of Justice vetoed the agreement. Memorandum Opinion of April 4, 1984 [hereinafter "Mem. Op. II"] at 5-6, J.A. 10-11.

Meanwhile, Lockheed appealed the jury verdicts in the three "bellwether cases." In Schneider v. Lockheed Aircraft Corp., supra, this court reversed the judgments in those cases on the ground that the District Court had improperly treated a statement of Lockheed's counsel in a jurisdictional proceeding as an admission that the infants were probably injured as a result of the crash. 658 F.2d at 842-43. Moreover, the Schneider court effectively prevented a plaintiff's victory in one trial from being used in other cases for collateral estoppel (issue preclusion) effect on the issue whether the accident caused other plaintiffs to suffer from MBD. Id. at 852. The plaintiffs were thus faced...