Decision Date10 March 1989
Docket NumberNo. 88-F-664.,MDL No. 751,88-F-664.
Citation720 F. Supp. 1467
PartiesIn re AIR CRASH DISASTER AT STAPLETON INTERNATIONAL AIRPORT, DENVER, COLORADO, ON NOVEMBER 15, 1987. Karen Svea JOHNSON and Robert Cooke, Jr., wife and husband, Plaintiffs, v. CONTINENTAL AIRLINES, INC., a Delaware Corporation, Defendant.
CourtU.S. District Court — District of Colorado

ORDER MDL 751-33



This multidistrict action involves claims for personal injury and wrongful death arising out of the crash of a commercial airliner. Plaintiffs in the instant matter are Karen Svea Johnson, a passenger injured in the crash, and Robert Cooke, Jr., her husband. Defendants in this litigation are Continental Airlines, Inc., ("Continental") and Texas Air Corporation.1 Other interested parties include several passengers whose claims were joined with Ms. Johnson's for certain purposes. The Johnson case was selected and tried as an exemplar case by her counsel and the Plaintiffs Steering Committee.2 Consolidated liability claims of all plaintiffs, as well as the Johnson and Cooke claims for compensatory damages, were tried to a jury during a three week period in January of 1989. Specifically, plaintiffs' common claims alleged liability for negligence, punitive damages, and false advertising under the Texas Deceptive Trade Practices Act. The jury returned its verdicts on January 31, 1989, finding, in summary, (1) plaintiffs Karen Johnson and Robert Cooke, Jr. suffered damages in certain amounts, (2) defendant's conduct was either willful or reckless, under Idaho law, (3) defendants were not grossly negligent and should not be held liable for punitive damages under Texas law, and (4) defendants trade practices were deceptive, as defined by Texas law, but these practices did not cause injury to plaintiff Karen Johnson. The jury initially reviewed defendant's conduct under the law of Idaho in regard to that state's limitation on the size of a non-economic damage award. The jury reviewed defendant's conduct again under Texas law to determine if punitive damages should be assessed.

The matter comes before the court on post-trial motions of the Plaintiffs Steering Committee and of certain plaintiffs, filing separately, for amended judgment or new trial, filed February 15, 1989.3 Individually and collectively, plaintiffs' various objections to judgment in regard to liability and punitive damages are unpersuasive. Plaintiffs were afforded a fair and complete trial on all issues. The jury verdicts clearly establish that punitive damages were not warranted in this multidistrict litigation. Compensatory damage awards to plaintiffs Johnson and Cooke are supported by an extensive trial record. The court's instructions clearly set forth the applicable rules of law. Plaintiffs were afforded wide latitude to present relevant evidence in support of their complaint. The several issues addressed in this opinion are organized as follows:

I. Post-Trial Motions.
II. Background.
A. Factual Background.
B. Procedural Background.
C. Jury Verdicts and Current Disposition of Claims.
III. Inconsistent Verdicts.
A. Assignment of Error.
B. Standards of Inconsistency.
C. Internal Consistency—Different Standards.
D. Internal Consistency—Different Claims.
IV. Presentation of Punitive Damage Claims.
A. Punitive Damages and Mass Tort Litigation.
1. Instructing the Jury on the Multi-District Verdict.
2. Evidence of Other Crash Victims.
B. Division of Proof and the Stipulated Trial Plan.
C. Dismissal of Claims Against Texas Air Corporation.
D. Conclusion—Punitive Damage Issues.
V. Verdicts Contrary to Evidence or Law.
A. Compensatory Damages.
1. Economic Damages.
2. Non-Economic Damages.
3. Conclusion—Compensatory
Damage Issues.
B. Causation Under the Texas Deceptive Trade Practices Act.
VI. Amended Judgment.

In two sets of motions currently before the court, plaintiffs raise objections to the form of judgment, consistency of the verdicts, and conduct of trial.

In regard to the individual claims of Karen Johnson and Robert Cooke, Jr., the Steering Committee contends (1) the compensatory damage award is wholly inadequate in light of evidence presented at trial, (2) the deceptive trade practices verdict is contrary to the weight of the evidence, and (3) the form of judgment does not reflect the language of the verdicts, improperly deducts certain amounts as a setoff, and does not reflect the appropriate rate of pre-judgment interest. The Steering Committee seeks modified judgement or new trial on the Johnson claims.

In regard to consolidated claims, the crux of the post-trial motions is that entry of judgment on punitive damage claims is error. The Steering Committee contends that the conduct of trial and the entry of judgment on inconsistent verdicts prejudiced the punitive damage claims of Ms. Johnson and Mr. Cooke as well as the consolidated punitive damage claims of all plaintiffs. The Steering Committee contends (1) the verdict finding defendant Continental not liable for punitive damages is inconsistent with special interrogatories returned by the jury on claims for non-economic damages, (2) errors in the application of the stipulated trial plan prejudiced presentation of claims for punitive damages, (3) confusion in regard to bifurcation of punitive damage issues under the stipulated trial plan also prejudiced these claims, and (4) dismissal of claims against defendant Texas Air Corporation was in error and prejudiced plaintiffs' recovery of a punitive damage award. Certain other plaintiffs, filing separate motions, reiterate these objections and contend further that the court's instructions on punitive damage issues misstated the applicable law. Both groups seek modification of judgment to reflect that defendant's conduct was grossly negligent, leaving a determination of liability for punitive damages for resolution by reconvening the jury, or, in the alternative, new trial in the exemplar case.

Certain recitals in the motions are directed to the applicability of the exemplar trial verdict to other plaintiffs. Those issues will be addressed in the Final Pretrial Order which will be entered at a later date. See Order MDL 751-32, slip op. (Feb. 10, 1989).

Plaintiffs' motions for new trial are DENIED. With the exception of the language of judgment, the amount of set-off, and pre-judgment interest, we find that the objections raised require no action by the court. Plaintiffs' motions to modify judgment are DENIED as to all issues except those regarding form of judgment. Recalculation of the appropriate set-off against Ms. Johnson's damages and correction of the wording of the verdicts will be resolved by subsequent order, following briefing of the conflicts of law principles effecting an award of pre-judgment interest.4


The court has jurisdiction over these actions based on diversity of citizenship and a conditional transfer order entered by the Judicial Panel on Multidistrict Litigation. See 28 U.S.C. §§ 1332 & 1407; In re Air Crash Disaster at Stapleton Int'l Airport, 683 F.Supp. 266 (J.P.M.L.1988).

A. Factual Background.

These cases arise out of the crash of Continental Airlines Flight 1713 on November 15, 1987. Flight 1713 crashed as it attempted take-off from Stapleton International Airport in Denver, Colorado during a heavy snow storm. Flight 1713 was scheduled for flight to Boise, Idaho.

At trial, the physical causes of the crash were shown to be ice on the fuselage and pilot error. Ice on an aircraft can alter or defeat the aerodynamic shape of the wings and thus prevent normal flight. The danger can be prevented by "deicing," a procedure by which chemicals are sprayed on the wings and fuselage of an aircraft to remove accumulated ice and snow and to delay reaccumulation. Between passenger boarding and take-off, communications between the cockpit crew, the control tower and other Continental employees became confused. An inordinate delay between deicing and take-off may have caused ice to reaccumulate on the aircraft.

To passengers and the cabin crew, the aircraft seemed sluggish during its take-off roll. Upon lift-off the plane dipped to one side. Testimony at trial indicated that the pilot, First Officer Lee Bruecher, may have improperly compensated for the shift. The wing of the aircraft struck the ground and the aircraft flipped over, broke apart and exploded, sending a fire-ball through the cabin from front to back.

Twenty-eight (28) persons, mostly in the front section of the cabin, were killed; fifty-four (54) others were injured. The captain, first officer and a flight attendant were among the dead. A majority of the victims were residents of Idaho. Idaho plaintiffs include Ms. Johnson and members of a high school agricultural club returning to Boise from a national convention. Passengers ranged in age from an infant to senior citizens.

Plaintiff Karen Johnson suffered extensive injuries in the crash. Her injuries included several broken ribs, lung damage, torn aorta descending to her heart, nerve damage affecting the muscles which control her eye, fractured left leg, fractured left arm, bruises to her brain, and post-traumatic stress. Ms. Johnson was hospitalized in Denver and Boise and required further home care and physical therapy. Ms. Johnson underwent surgery on different occasions to attach a synthetic graft in place of her damaged aorta and to insert pins, plates and screws in her broken bones. Further procedures will be necessary to remove the orthopedic devices and perhaps to correct the double-vision which currently requires Ms. Johnson to wear an eye patch. Ms. Johnson is pursuing corrective lenses as an alternative to the latter surgery, which she currently finds an unacceptable risk. Medical practitioners treating Ms. Johnson characterize her drive and rate of recovery as remarkable.

The permanency of Ms. Johnson's...

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7 cases
    • United States
    • U.S. District Court — District of Colorado
    • July 18, 1989
  • In re Air Crash Disaster at Stapleton Intern.
    • United States
    • U.S. District Court — District of Colorado
    • June 7, 1989
  • Johnson v. Continental Airlines Corp.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 21, 1992
    ... ... damages in multidistrict litigation arising from an airplane crash. Due to the complex nature of this litigation, we outline the factual ... 1713, bound for Boise, Idaho, crashed during takeoff from Stapleton International Airport in Denver, Colorado. Twenty-eight persons were ... In re Air Crash Disaster at Stapleton Int'l Airport, 720 F.Supp. 1433, 1434 (D.Colo.1988). Karen ... ...
  • Intern. Financial Services v. Chromas Tech.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 23, 2004
    ... ... that "disregard of the corporate entity is essentially an equitable doctrine"); In re Air Crash Disaster, 720 F.Supp. 1467, 1484 (D.Colo.1989) (stating that "the ultimate decision of whether to ... ...
  • Request a trial to view additional results
1 books & journal articles
  • The Alter Ego Doctrine in Colorado
    • United States
    • Colorado Bar Association Colorado Lawyer No. 28-1, January 1999
    • Invalid date
    ...977, 980-84 (5th Cir. 1984) (en banc) (emphasizing distinction between tort cases and contract cases). 20. In re Air Crash Disaster, 720 F.Supp. 1467, 1484 1989); Fletcher, supra, note 18 at § 41.10. 21. Gorsich v. Double B Trading Co., 893 P.2d 1357, 1362 (Colo.App. 1994) (emphasis added);......

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