In re Air Crash Disaster at Washington, DC

Decision Date03 March 1983
Docket NumberMisc. No. 82-0055. MDL No. 499.
Citation559 F. Supp. 333
CourtU.S. District Court — District of Columbia


Donald W. Madole, Chairman, Washington, D.C. (argued), Milton G. Sincoff, New York City (argued), George E. Farrell, Washington, D.C., for Plaintiffs' Steering Committee.

George N. Tompkins Jr., (argued), Desmond T. Barry, Edward De Vivo, Condon & Forsyth, New York City, Moffett B. Roller, Cynthia J. Larsen, Condon & Forsyth, Washington, D.C., for defendant Air Florida, Inc.

Walter E. Rutherford, Haight, Gardner, Poor & Havens (argued), New York City, William G. Schaffer, Jones, Waldo, Holbrook & McDonough, Washington, D.C., for defendant American Airlines, Inc.

William A. Gould, Elizabeth S. Merritt, Perkins, Coie, Stone, Olson & Williams, Washington, D.C., Keith Gerrard (of counsel), John D. Dillow (of counsel; argued), Thomas J. McLaughlin (of counsel), Perkins, Coie, Stone, Olson & Williams, Seattle, Wash., for defendant The Boeing Co.


JOYCE HENS GREEN, District Judge.

Before the Court is the motion of defendant Air Florida, Inc., seeking reconsideration of those portions of this Court's Memorandum Opinion and Order of February 17, 1983 determining that, with respect to the majority of the actions in this consolidated proceeding, the law of the State of Washington shall govern the question of defendant The Boeing Company's liability for an assessment of punitive damages. Air Florida argues that under the applicable analysis, the law of the District of Columbia shall govern that issue. In the alternative, Air Florida seeks severance of the punitive damages issue from the liability trial or certification of the decision for interlocutory appeal. Because of the proximity of the scheduled trial date, the parties were directed to respond to the motion by noon, March 2, 1983. Boeing opposes the motion; the Plaintiffs' Steering Committee concurs with Air Florida, to the extent that Air Florida's motion supports the Plaintiffs' Steering Committee's previous position that District of Columbia punitive damages law shall apply to all defendants in all actions. Defendant American Airlines, Inc. has not filed an opposition to the motion. The arguing parties have briefed the issue more than adequately.

Choice of law questions in air disaster cases often have proven difficult of resolution. In In Re Paris Air Crash of March 3, 1974, 399 F.Supp. 732 (C.D.Cal.1975), Judge Pierson M. Hall, certainly one of the nation's most experienced judges in aviation cases, stated that

The law on "choice of law" in the various states and in the federal courts is a veritable jungle, which, if the law can be found out, leads not to a "rule of action" but a reign of chaos dominated in each case by the judge's "informed guess" as to what some other state than the one in which he sits would hold its law to be.

399 F.Supp. at 739. The Ninth Circuit once referred to the process of determining the law to be applied as involving an entry into "the wilderness in which courts sometimes find themselves when searching for solutions to problems arising under the judicial nightmare known as Conflict of Laws." Forsyth v. Cessna Aircraft Co., 520 F.2d 608, 609 (9th Cir.1975). Many have concluded that the only resolution of this recurring problem is by Congressional enactment of a uniform, national law governing airline tort liability. E.g., In Re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 632-33 (7th Cir.1981), see also Kennelly, Litigation Implications of the Chicago O'Hare Airport Crash of American Airlines Flight 191, 15 J.Mar.L.Rev. 273, 297-300 (1982). In an effort to resolve the problem in advance of legislative action, some courts have looked to federal common law or federal aviation regulations as a source of uniform principles. E.g., Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 403-05 (7th Cir.1974), cert. denied, Forth v. Allegheny Airlines, Inc., 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 470 (1975) (federal common law rule of contribution and indemnity—decided by court to be a comparative fault rule—would control in light of pervasive federal regulation of aviation); Paris Air Crash, 399 F.Supp. at 746-47, 750-53 (federal interest evident to court in light of federal regulation of aviation, citing Kohr and Title 14, C.F.R. and appending relevant sections thereof to opinion; federal interest met by application of California law).

Indeed, in Chicago, the Seventh Circuit found it impossible under the governing choice of law rules to discern the law that properly applied to the question of the defendant manufacturer's liability for punitive damages. Employing the interest analysis approach of the Restatement, Second, of the Law of Conflict of Laws, that court found that the two states having the greatest interest in the matter were Missouri, the manufacturer's principal place of business, and California, where the plane was built. 644 F.2d at 613-14. Yet between these two states, the court concluded that neither's interest could be said to be greater than the other's. Id. at 615. Since Missouri law permitted an award of punitive damages while California law did not, the Seventh Circuit was faced with a true conflict. As the court decided that there seemed to be no way to escape from that conflict by reaching a "moderate and restrained" interpretation of either state's policy, the problem simply could not be resolved under the Restatement, Second interest analysis. Id. As a result, the Seventh Circuit was forced to go outside of the established choice of law principles and chose the law of a state acknowledged to be less interested, Illinois, the site of injury, to break the tie. Id.

In the absence of Congressional action or a decision of the Court of Appeals for this Circuit or the Supreme Court, this Court is constrained by the principles so aptly labeled by the Ninth Circuit a "judicial nightmare." This is not to say that the principles to which this Court is bound are in all cases necessarily unworkable. No party to the instant action has argued that, nor is it the view of this Court that a correct and fair resolution of these issues cannot be reached in this proceeding under the present rules. On the contrary. Recognizing this, the Court welcomes the opportunity to reconsider its prior decision in light of the arguments now before it and appreciates the fact that the pending motion provides the vehicle for that review.

Although Air Florida does not suggest any defect in the approach used by the Seventh Circuit in Chicago, the essence of its argument is that in seeking to determine the law applicable to the instant litigation this Court did not simply consider the legal reasoning of Chicago but also transposed the factual application of that analysis to the different facts of the case at bar. Air Florida also challenges the Court's selection of Washington State as the locus of Boeing's allegedly wrongful conduct, to the extent that such conduct complained of includes Boeing's alleged failure to warn Air Florida of dangers, which warnings need not have been made in that state. Air Florida does not disagree with this Court's conclusion that the two jurisdictions most interested in this issue are the District of Columbia and Washington State. Nor does Air Florida argue that the Court did not apply the proper choice of law principles. Air Florida's narrow challenge primarily focuses on the extent to which this Court found Chicago analogous to this case.

In response to Air Florida's motion, Boeing challenges Air Florida's standing to argue that punitive damages should be available against Boeing in that the airline is not a "party aggrieved" by an adverse ruling. However, the potential for jury confusion and prejudice are sufficient to establish on the part of Air Florida a stake in the resolution of the choice of law question as it affects the proceedings of the trial. Nevertheless, even if Air Florida did not have standing to raise the questions presented herein, the Court nonetheless could have entertained a reconsideration of its ruling sua sponte. Boeing also suggests that Air Florida in effect waived its right to argue the question of the law governing Boeing's liability for punitive damages because it did not address the issue in its briefs or at oral argument. The Court finds otherwise. Certainly, in light of the alignment of the two parties on the same side of the case it would have made no more sense for Air Florida to argue for the application of a punitive damages law to Boeing than it would have for Boeing to argue the same with respect to Air Florida—which it did not. Air Florida's interest in the question arose only when this Court ruled that divergent punitive damages laws would govern these parties' liability.

With respect to the choice of law question itself, Boeing argues that the holding in Chicago is precisely on point, interpreting that holding as meaning that in a case such as this the state of injury (evidently as a matter of law) has a lesser interest in promoting its policies on punitive damages than either the state where the conduct allegedly occurred or the state in which the defendant had its principal place of business. Under Chicago, Boeing argues, the court should consider the interests of the state where injury occurred only where there is a conflict between the laws of the latter two jurisdictions.

There are a number of similarities between the facts of this case and those of Chicago. Both involved accidents which occurred upon takeoff. As such, in each case the state where the injury occurred had "very strong interests" in issues relating to the manufacturer's liability for punitive damages. 644 F.2d at 615. In each case no defendant had its principal place of business in the state of injury. Accordingly, in neither case could ...

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