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

Decision Date09 September 1983
Docket NumberNo. 82-1424,82-1424
PartiesFRIENDS FOR ALL CHILDREN, INC., as legal guardian and next friend of the named 150 infant individuals, et al. v. LOCKHEED AIRCRAFT CORPORATION and the United States of America, Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Richard M. Sharp, Washington, D.C., with whom Bruce C. Swartz, Carroll E. Dubuc, Nicholas H. Cobbs, William Kanter and Linda Jan S. Pack, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellants.

J. Vernon Patrick, Jr., Birmingham, Ala., with whom Oren R. Lewis, Jr., Arlington, Va., William M. Cohen and Charles R. Work, Washington, D.C., were on the brief for appellees.

Before BORK and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

This interlocutory appeal occurs in the course of protracted litigation resulting from the crash outside Saigon on April 4, 1975, of a C5A aircraft manufactured by Lockheed Aircraft Corporation and owned and operated by the United States Air Force. The district court denied appellants' motion to dismiss on forum non conveniens grounds seventy-three actions filed by Friends for All Children, Inc. ("FFAC") on behalf of foreign plaintiffs for injuries allegedly sustained in this crash but certified this question for review under 28 U.S.C. Sec. 1292(b). We granted leave to appeal and affirm.

I.

Shortly before United States forces were evacuated from South Vietnam, President Ford authorized "Operation Babylift" and ordered a Lockheed C5A transport to Saigon to evacuate Vietnamese orphans. Soon after taking off from Saigon with more than three hundred persons on board, including two hundred and fifty infants, the plane lost a cargo door, suffered explosive decompression, and crash-landed in a rice paddy near Saigon. One hundred and forty-four persons on the plane perished; approximately one hundred and fifty children and babies survived. Most of the surviving orphans were flown to the United States the next day and, after undergoing medical examinations, were released to their adoptive parents or to representatives of adoption agencies. 1

Approximately one year after the crash, FFAC, as "legal guardian and next friend" of one hundred and fifty named plaintiffs, filed a complaint against Lockheed in the United States District Court for the District of Columbia. The complaint alleged that the plaintiffs were survivors of the C5A crash and charged Lockheed with negligence in the design and manufacture of the aircraft. The complaint did not name the United States as a defendant, but the United States has been joined as a result of Lockheed's third-party complaint, which alleged that primary negligence on the part of the United States had proximately caused the accident.

Subsequently, twelve jury trials were held concerning these claims; and stipulations have been entered into by the parties that effectively narrow the remaining contested issues to be litigated. The first stipulation, J.A. at 179-81, approved by the district court on December 6, 1979, provided, inter alia, that (1) Lockheed would not contest its liability for compensatory damages, (2) the United States would not contest its liability for indemnification or contribution for any such compensatory damages, (3) each adoptive parent, court appointed guardian or other legal representative who responds to the guardian ad litem's notice and indicates a desire to proceed shall file an amended complaint on behalf of each infant and will (4) waive all claims for non-compensatory and punitive damages. 2 This stipulation contains various provisions that can be read as reflecting an understanding that further proceedings would take place in the United States District Court for the District of Columbia, but the stipulations are sufficiently complex and ambiguous on this point that they are not dispositive and we need not rely on them. 3 A second stipulation, approved by the district court on the same day, established that Lockheed would make certain non-refundable payments to the guardian ad litem to facilitate the litigation and that "[i]n view of defendant's agreement to make payments for travel expenses for such depositions and medical examinations ..., the parties agree that to the extent possible, these depositions and examinations will take place in the District of Columbia area." J.A. at 177.

On June 13, 1980, some six months after the district court's approval of these stipulations, Lockheed moved to dismiss the complaints filed on behalf of foreign plaintiffs on the ground of forum non conveniens. This motion was denied by the district court on June 19, 1980 on the grounds that "these cases have unique and significant contacts with the United States and the Seat of Government, i.e., the District of Columbia." J.A. at 199. Lockheed's subsequent motion for certification of this decision under 28 U.S.C. Sec. 1292(b) (1976) was denied. Lockheed's forum non conveniens motion was renewed on January 12, 1981, after the district court sua sponte invited the parties on November 20, 1980, to reconsider the applicability of the doctrine in light of this court's decision the preceding week in Pain v. United Technologies Corp., 637 F.2d 775 (D.C.Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). On May 15, 1981, the United States filed a memorandum in support of Lockheed's renewed motion to dismiss.

II.

The district court denied the renewed forum non conveniens motions of Lockheed and the United States on October 2, 1981. 4 J.A. at 264. The court acknowledged at the outset that "trial of these cases ... would impose an enormous burden on the judges of this busy Court," id. at 259, but, after weighing various factors, concluded that "it would be manifestly unjust to require each plaintiff to mobilize abroad the evidence and representation now available here," id. at 263, and denied the motion "without prejudice to their renewal before the judge to whom each individual case will be assigned." Id. at 264.

Before detailing the factors that weighed against dismissal, the court pointed out that the forum had been chosen by the plaintiff and, citing Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), observed that "[t]he defendants have a heavy burden in overcoming the presumption favoring the forum selected by the plaintiff." J.A. at 260. As the Supreme Court's subsequent decision in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), reh. denied, 455 U.S. 928, 102 S.Ct. 1296, 71 L.Ed.2d 474 (1982), establishes, the district court was mistaken in supposing that a foreign plaintiff's choice of a United States forum is entitled to so much deference. 5 There is, however, no indication in the memorandum opinion of the district court that this presumption was necessary or was actually relied upon in reaching its decision.

In explaining its denial of the motion to dismiss, the district court noted first that it and our court "already have an extraordinarily large investment of time and effort in the management and resolution of the closely-related cases brought by United States resident infants," J.A. at 260, and that counsel, most of whom are from the Washington area, had already developed "extensive experience and expertise with respect to the intricate facts and law which are at issue, with slight variations, in all of the cases." Id. It similarly pointed out that numerous expert witnesses, who had come to "constitute an experienced, seasoned cadre," id. at 261, were now "in place here" and that it would seem to be "more convenient to bring an individual foreign infant plaintiff to the United States than it would be to organize similar cadres of experts in each of the several countries in which the foreign plaintiffs reside or to send the U.S. cadre there." Id. The court also observed that it was in the best position both to oversee the administrative machinery that had been established to facilitate settlement and to interpret complex agreements that had been negotiated among the guardian, plaintiffs' counsel, Lockheed, and the United States. Id. at 260-61.

The district court next detailed factors that distinguish the present case from our decision in Pain. All the parties in Pain, the district court noted, unlike most of the ones here, had strong contacts with the foreign forum (Norway); Norwegian authorities had conducted the official investigation of the crash in question in Pain and all the documentary and factual evidence was located in Norway. By contrast, the district court noted,

the plaintiffs were maintained in Vietnam by Friends for All Children, a private American charity which was caring for orphans there. Friends for All Children arranged for the adoption of all the infant orphan plaintiffs, here and abroad. At the time of the crash, they were being transported to the United States from Vietnam pursuant to an order by then President Ford in an operation conducted by the United States Air Force. This country has a public interest in fair adjudication of the claims of all the orphans which was not present in Pain.

J.A. at 262.

Responding to Lockheed's argument that its agreement not to contest liability for the crash rendered foreign fora more convenient because the extent of each infant's injuries had to be determined by medical experts who spoke the patient's language and who knew the mores of that place, the district court noted that each plaintiff was still required to prove that the accident was the proximate cause of the diagnosed injuries and that the evidence needed to litigate these issues was more readily available in the United States. The court further pointed out that neither the defendant nor the third-party defendant had made any showing that it would be...

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