In re Air Crash Disaster at Detroit Metro. Airport

• Decision Date: 16 November 1989
• Docket Number: MDL No. 742.
• Citation: 737 F. Supp. 399
• Parties: In re AIR CRASH DISASTER AT DETROIT METROPOLITAN AIRPORT ON AUGUST 16, 1987.
• Court: U.S. District Court — Western District of Michigan

737 F. Supp. 399

In re AIR CRASH DISASTER AT DETROIT METROPOLITAN AIRPORT ON AUGUST 16, 1987.

MDL No. 742.

United States District Court, E.D. Michigan, S.D.

November 16, 1989.

Charles Brewer, Phoenix, Ariz., Stanley Chesley, Cincinnati, Ohio, Lee Kreindler, New York City, Gerald Lear and Thomas Meehan, Washington, D.C., and Richard Schaden, Birmingham, Mich., for Plaintiffs' Steering Committee.

Carroll E. Dubuc, Laxalt, Washington, Perito and Dubuc, Washington, D.C., for defendant Northwest Airlines.

John J. Hennelly, Bryan, Cave, McPheeters & McRoberts, Los Angeles, Cal., and Donald E. Shely, Dykema Gossett, Detroit, Mich., for defendant McDonnell Douglas.

ORDER

JULIAN ABELE COOK, Jr., Chief Judge.

In an effort to advance their respective positions in the trial before this Court, two of the principal parties in the current litigation have filed pleadings which seek to have two prospective witnesses declared as experts. Specifically, on September 29, 1989, the Plaintiffs' Steering Committee (PSC) filed a "Motion For A Declaration That Hugh Waterman May Testify As An Expert Witness." Several days later (October 3, 1989), Northwest Airlines, Inc. (Northwest) filed a similar motion in which it requested this Court to declare Everett Morris as an expert witness. The Defendant, McDonnell Douglas Corporation (MDC), and a Third-Party Defendant, United States of America, have filed pleadings in opposition to the two motions.¹ For the following reasons, this Court declines to issue a judicial declaration that Waterman and/or Morris may testify as an expert witness in the above-captioned multidistrict cause.

I

Pursuant to the terms of Practice and Procedure Order Number 2, the PSC, Northwest and MDC were required to designate and publish prior to February 15, 1989(1) the identity of their expert witnesses, and (2) the subject matter about which each expert witness would testify. See In re Air Crash Disaster at Detroit Metropolitan Airport on August 16, 1987, MDL No. 742 (E.D.Mich. Dec. 16, 1988). One of those persons who was listed by the PSC as a proposed expert witness was Hugh Waterman, a former branch chief of aircraft systems in the Long Beach, California office of the Federal Aviation Administration (FAA). The PSC represents that Waterman, while employed by the FAA, was involved with the certification of the MD-80 aircraft. According to the PSC, "Waterman's testimony would cover Federal Aviation Regulations both generally and as they pertain to takeoff warning systems, and also the purpose and use of FMEA's." PSC's Motion for Declaration at 4 (Sept. 29, 1989).

Similarly, Northwest designated Everett Morris, former chief of the electrical, avionics and instruments section at the Long Beach, California FAA office, as an expert witness. Northwest submits that Morris "is to testify concerning, inter alia, (1) certification of the CAWS Central Aural Warning System, DFGS Digital Flight Guidance System and circuit breakers; (2) whether these systems performed their intended functions and performed critical functions within the meaning of the Federal Aviation Regulations; and (3) safety, failure and similar analyses conducted by MDC and the adequacy of information supplied to the FAA by MDC with respect to the CAWS and DFGS." Northwest's Motion for Declaration at 3 (Oct. 3, 1989).

In separate letters, both of which were dated September 11, 1989, an attorney representing the United States informed the PSC and Northwest that his review of the deposition testimony of Waterman and Morris "indicates that they may be testifying in direct violation of 18 U.S.C. § 207(a), Ethics in Government Act." He also indicated that if the deposition testimony of Waterman and Morris is admitted into evidence in this case and deemed by the federal government to be a violation of Section 207, these two FAA employees may be subjected "to possible criminal and/or administrative sanctions."

Subsequent to their receipt of these letters, the PSC and Northwest moved for a declaration by this Court that Waterman and Morris may testify as expert witnesses without violating the provisions of the Ethics in Government Act.

II

Pursuant to 18 U.S.C. § 207, former agency employees may be imprisoned for a period not to exceed two (2) years, and assessed a maximum fine of Ten Thousand Dollars ($10,000) for violating the following provisions:

Whoever, having been an officer or employee ... of any independent agency of the United States, ... after his employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, any other person (except the United States), in any formal or informal appearance before, or, with the intent to influence, makes any oral or written communication on behalf of any other person (except the United States) to—

(1) any ... court, ..., and

(2) in connection with any judicial or other proceeding, ... or other particular matter involving a specific party or parties in which the United States ... is a party or has a direct and substantial interest, and

(3) in which he participated personally and substantially as an offer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, while so employed.

18 U.S.C. § 207(a). Section 207 also provides that "nothing in this section shall prevent a former officer or employee from giving testimony under oath, or from making statements required to be made under penalty of perjury." 18 U.S.C. § 207(h). The implementing regulation ostensibly adds the following gloss to the provisions of section 207(h):

A former Government employee may testify before any court, board, commission, or legislative body with respect to matters of fact within the personal knowledge of the former Government employee. This provision does not, however, allow a former Government employee, otherwise barred under 18 U.S.C. § 207(a), (b), or (c) to testify on behalf of another as an expert except: (1) To the extent that the former employee may testify from personal knowledge as to the occurrences which are relevant to the issues in the proceeding, including those in which the former Government employee participated, utilizing his or her expertise, or (2) in any proceeding where it is determined that another expert in the field cannot practically be obtained; that it is impracticable for the facts or opinions on the same subject to be obtained by other means, and that the former Government employee's testimony is required in the interest of justice.

5 C.F.R. § 737.19(b).

Both the PSC and Northwest contend that section 207(h) permits Waterman and Morris to testify as experts in this litigation. As an alternative remedy, the movants argue that these experts should be allowed to testify under the terms of the above cited implementing regulation. Thus, the PSC and Northwest ask this Court to rule in advance that (1) Waterman and Morris may testify as expert witnesses during the trial, and (2) their testimony, if admitted, would not constitute a violation of the Ethics in Government Act.

This Court declines to rule on the merits of the pending motions because (1) the movants lack standing to initiate the instant request, and (2) the present posture of the record suggests that the issues are not ripe for a judicial interpretation, in that the parties have called upon this Court to issue a purely advisory opinion.

III

According to the express provision of Section 2, Article III of the United States Constitution, the power of the federal courts is limited to "cases" and "controversies." See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911). This limited grant of judicial authority has been construed to preclude the federal judiciary from issuing purely advisory opinions. See Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1986) ("the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions") (citation omitted); United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1961) (courts may not hear cases that do not present "that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflict and demanding interests").

Article III, as well as other prudent considerations, mandate that a case must be sufficiently "ripe" before a federal court may render a decision on the merits. See Buckley v. Valeo, 424 U.S. 1, 114, 117, 96 S.Ct. 612, 680, 681, 46 L.Ed.2d 659 (1976) (per curiam); Molins PLC v. Quigg, 837 F.2d 1064, 1068 (Fed.Cir.), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988); Postscript Enterprises, Inc. v. Westfall, 771 F.2d 1132, 1136-37 (8th Cir. 1985); Johnson v. Sikes, 730 F.2d 644, 648 (11th Cir.1984). It has been long established that the federal courts shall not entertain the merits of an issue which focuses upon "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985) (quoting 13A C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE (CIVIL) § 3532.2, at 141 (West 1984)); see also Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000-01 (Fed.Cir.1988) (Markey, C.J.). Indeed, the federal judiciary may not decide "`cases ... of "a hypothetical or abstract character."'" Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968) (quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)). The Supreme Court, in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 297-98, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citations omitted), stated:

the difference between the abstract question and a `case and

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