IN RE AIR CRASH DISASTER AT DETROIT MET. AIRPORT

Citation737 F. Supp. 391
Decision Date18 August 1989
Docket NumberMDL No. 742.
PartiesIn re AIR CRASH DISASTER AT DETROIT METROPOLITAN AIRPORT ON AUGUST 16, 1987.
CourtU.S. District Court — Western District of Michigan

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.

The instant multidistrict litigation arose as a result of the crash of Northwest Flight 255 on August 16, 1987. Less than two weeks later (August 28, 1987), the first case was filed in the Eastern District of Michigan.1 On December 9, 1987, the Judicial Panel on Multidistrict Litigation determined that all federal cases arising from the Flight 255 accident should be consolidated in this judicial district for pretrial purposes. See 28 U.S.C. § 1407.

Since that time, this Court has presided over all of the pretrial proceedings in this matter. As of this date, one hundred fifty-six (156) cases are under the jurisdiction of this Court for pretrial purposes.

This Order is intended to establish guidelines for the trial on the issues of liability which is scheduled to begin on October 2, 1989. All previous Orders of this Court that are inconsistent with this Order are deemed superseded.

I

On July 5, 1989, this Court identified a case, Johnson v. Northwest Airlines, Inc., 88-CV-72040-DT, which would serve as an exemplar case for a trial as to liability issues. This Court also designated four (4) other cases which would serve as alternate exemplar cases in the event that Johnson does not proceed to a liability trial on October 2, 1989.

It is the desire of this Court and all of the parties in this litigation to resolve all liability issues, which involve essentially identical proofs, as expeditiously and efficiently as possible. While the presentation of the Plaintiffs' claims may involve different substantive standards, the evidence which will be offered at trial on these issues is substantially the same for all claimants. Therefore, this Court concludes that these goals will not be met by conducting a single exemplar trial which does not resolve all of the liability claims arising from the air crash.

The Manual on Complex Litigation (Second) reads:

Pretrial proceedings in complex litigation are often focused upon a lead or primary case; the failure to explore fully the possibilities of consolidation of other cases for trial has sometimes necessitated additional trials that could have been avoided. Utilizing Fed.R.Civ.P. 42(a), the court should consider consolidating all cases pending in (or transferable to) the court for a joint trial of those issues on which essentially the same evidence probably will be presented....
Whether consolidation is permissible or desirable will depend upon the nature and extent of the non-common evidence to be presented at such a trial. Fed.R. Civ.P. 42(b) may often be used to isolate for an initial joint trial particular issues on which all or most of the evidence will be common to all cases, while reserving non-common issues for subsequent individual trials.

MANUAL ON COMPLEX LITIGATION (SECOND) § 21.631, at 109 (1985) (footnotes omitted).

Therefore, rather than preside over the claims of an individual plaintiff, as was previously scheduled, this Court has determined that it is in the best interests of all of the parties to (1) transfer and consolidate all cases in this multidistrict litigation, (2) bifurcate the issue of liability from the issue of damages, and (3) commence a joint trial that will resolve all liability issues which remain as of the first day of trial.2

II

On April 17, 1989, the Defendant, McDonnell Douglas Corporation (MDC), filed a Motion to Transfer all pending cases, which had been originally brought in federal judicial districts other than the Eastern District of Michigan, to this Court for the purpose of conducting a liability trial. In addition to submitting briefs that addressed the merits of this motion as provided in the Local Rules, see Local Rule 17(g) & (i), the parties were allowed to file supplemental briefs on this issue.

It is well established that a transferee court, which has been designated to conduct pretrial proceedings in a multidistrict matter, may transfer actions that have been filed in another forum to its own judicial district pursuant to 28 U.S.C. § 1404(a).3 In re Fine Paper Antitrust Litigation, 685 F.2d 810, 820 (3d Cir.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1003 (1983); In re Longhorn Securities Litigation, 573 F.Supp. 274, 276 (W.D.Okl.1983); In re 1980 Decennial Census Adjustment Litigation, 506 F.Supp. 648, 650-51 (J.P.M.L.1981); In re Viatron Computer Systems Corp. Litigation, 86 F.R.D. 431 (D.Mass.1980); In re Air Disaster at John F. Kennedy International Airport, 479 F.Supp. 1118, 1121-22 (E.D.N.Y.1978); In re Mid-Air Collision Near Fairland, Indiana, 309 F.Supp. 621, 623 n. 6 (J.P.M.L.1970). In order to effectuate such a transfer under § 1404(a), it must be established that (1) the transferred action could have been brought in the transferee court, (2) a transfer would serve the interests of justice, and (3) a transfer would serve the convenience of the parties and witnesses.

In the case sub judice, the cases, which were transferred pursuant to the directive of the Judicial Panel on Multidistrict Litigation, could have been brought in this forum. Clearly, this Court has personal jurisdiction over the Defendants in this dispute and venue is proper since the cause of action arose in this judicial district. See 28 U.S.C. § 1391(a).

In addition, a § 1404 transfer of the cases that were filed in a judicial district outside the Eastern District of Michigan would serve the interests of justice as well as the interests of all the parties and witnesses. This conclusion is based on the following considerations: (1) no party in interest has lodged an objection to a § 1404 transfer, (2) nearly identical, or identical evidence regarding liability issues, shall be produced in each case, (3) this Court has presided over the discovery phase of this litigation and is intimately familiar with the controverted liability issues, (4) such a transfer may obviate the need for multiple liability trials which would, in all probability, promote uniform judicial decisionmaking and minimize litigation costs, (5) the accident at issue occurred in this judicial district, and (6) no other judicial district is more convenient for the parties and witnesses. See In re Antibiotic Antitrust Actions, 333 F.Supp. 299, 334 (S.D.N.Y. 1971) (when considering transfer of multiple cases from various judicial districts, the focus is not on the individual convenience of each party and witness but on the overall convenience of all parties and witnesses).

Therefore, for the foregoing reasons, all of the cases that are now pending in this Court for pretrial purposes as of the date of this Order are transferred to the United States District Court for the Eastern District of Michigan pursuant to § 1404(a). Those parties, whose cases were filed in a jurisdiction other than the Eastern District of Michigan and transferred to this forum by the Multidistrict Litigation Panel subsequent to the date of this Order, may "optin" to remain within this judicial district by filing an appropriate pleading with this Court on or before September 26, 1989.

III

This Court has broad discretion to determine whether to consolidate separate actions that are pending before it pursuant to Federal Rule of Civil Procedure 42(a), which provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Fed.R.Civ.P. 42(a); see Vincent v. Hughes Air West, Inc., 557 F.2d 759, 773-74 (9th Cir.1977); Atlantic States Legal Foundation v. Koch Refining Co., 681 F.Supp. 609, 651 (D.Minn.1988) (quoting C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE CIVIL § 2382 (1971)). In addition, this Court may issue an order of consolidation despite the protestations of the parties in interest. C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE CIVIL § 2383 (1971); see also Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 293, 12 S.Ct. 909, 911, 36 L.Ed. 706 (1892). The Manual on Complex Litigation recommends that, in the multidistrict litigation context in which the same evidence will be presented by each Plaintiff with regard to one or both of the Defendants' alleged culpability, the trial judge should attempt to consolidate all pending cases for a joint liability trial. See MANUAL ON COMPLEX LITIGATION (SECOND) §§ 21.631, 33.23.

It is the belief of this Court that the consolidation of all pending cases for a joint trial on all liability issues, including those cases originating in other judicial districts,4 will best comport with the spirit of the Federal Rules of Civil Procedure which mandate that the Rules "be construed to secure the just, speedy, and inexpensive determination of every action." Fed.R. Civ.P. 1. In the case sub judice, the complexity of the issues presented, the substantial number of common questions of fact relating to liability, and the potential for resolving all of the numerous claims in this case in a uniform and consistent manner mandate a consolidation of this litigation under Rule 42(a).

Therefore, all currently pending multidistrict cases which arise from the Flight 255 air crash...

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