IN RE AIR CRASH DISASTER AT BOSTON, MASS., JULY 31, 1973, 160.

Decision Date21 August 1975
Docket NumberNo. 160.,160.
Citation399 F. Supp. 1106
PartiesIn re AIR CRASH DISASTER AT BOSTON, MASSACHUSETTS ON JULY 31, 1973.
CourtU.S. District Court — District of Massachusetts

Speiser & Krause, New York City, Stephen T. Keefe, Jr., Quincy, Mass., Abner R. Sisson, Boston, Mass., Milton G. Sincoff, Maurice L. Noyer, New York City, Joseph P. Donahue, Jr., Lowell, Mass., Robert E. Perez, Wagner, Cunningham, Vaughan, Hapner & May, Tampa, Fla., Stephen J. Frasca, Nashua, N. H., MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., Edward Swartz, Michael B. Latti, Boston, Mass., John I. Van Voris, T. Paine Kelly, Jr., Tampa, Fla., Shane Devine, Arthur A. Greene, Manchester, N. H., Peter V. Millham, Laconia, N. H., Leonard S. Green, Dort S. Bigg, Manchester, N. H., Ronald L. Snow, Concord, N. H., Richard E. Davis Associates, Barre, Vt., Kolvoord, Overton & Wilson, Essex Jct., Vt., Paul, Frank & Collins, Gravel & Shea, Dinse, Allen & Erdmann, McNamara & Fitzpatrick, Latham, Estman & Tetzlaff, Burlington, Vt., Theodore Corsones, Rutland, Vt., Wool & Murdoch, Burlington, Vt., for plaintiffs.

Robert Fulton, Boston, Mass., George N. Tompkins, Jr., Condon & Forsyth, New York City, Robert L. Chiesa, Manchester, N. H., Ryan, Smith & Carbine, Rutland, Vt., for Delta Air Lines.

John M. Harrington, Jr., Boston, Mass., Crowe, McCoy, Agoglia, Congdon & Zweibel, Mineola, N. Y., for McDonnell Douglas Corp.

Andrew B. Goodspeed, Boston, Mass., for Sperry Rand.

Michael J. Pangia, Trial Atty., Torts Section, Aviation United Civ. Div., Dept. of Justice, Washington, D. C., for United States.

OPINION AND ORDER

CAFFREY, Chief Judge.

These actions for wrongful death arise out of the crash of a Delta aircraft in Boston, Massachusetts on July 31, 1973. By order of the Judicial Panel on Multi-district Litigation, cases were transferred to this Court from the district courts in New Hampshire, Vermont and Florida for consolidated and coordinated pretrial proceedings pursuant to 28 U.S. C.A. § 1407 (Supp.1975). Cases were also transferred to this Court from New York pursuant to sections 1404(a) and 1407 of the Judicial Code. Jurisdiction is predicated solely on diversity of citizenship. This matter came before the Court on motions by defendant Delta Airlines, Inc. seeking a ruling that the two hundred thousand dollar limitation on damages contained in the Massachusetts Wrongful Death Act in effect at the time of the crash, 1972 Mass.Stat. ch. 440, § 1,1 applies to the actions filed in the federal courts of Vermont, New Hampshire, Florida and New York, as well as to those originally filed in this district.

A federal court sitting in diversity must apply the substantive law of the forum state including its choice of law rules. Klaxon v. Stentor Elec. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Similarly, a United States District Court to which an action is transferred pursuant to 28 U.S.C.A. § 1407 must apply the substantive law of the transferor state and circuit. In re Four Seasons Securities Law Litigation, 370 F.Supp. 219 (W.D.Okl.1974); In re Plumbing Fixtures Litigation, 342 F. Supp. 756 (Jud.Pan.Mult.Lit.1972); Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 309 F.Supp. 1053 (E.D.Pa.1969). See Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).

Therefore, the applicable damage provisions must be determined in each case by applying the substantive law of the original forum, including its choice of law rules.

Although there are differences among the complaints filed in each state, no determinative factual distinctions exist within the group of cases filed in each state whence these cases came and therefore a general ruling may be made as to the law applicable to all of the actions filed in each state.

1. Vermont

The basis of Delta's motions to dismiss the actions filed in Vermont to the extent that they seek damages in excess of two hundred thousand dollars is the contention that Vermont adheres to the lex loci delicti choice of law rule in tort actions and therefore that the law of Massachusetts, the place of injury, controls these actions. The plaintiffs concede that Vermont was at one time a lex loci delicti state in regard to choice of law issues but maintain that today the Vermont Supreme Court, were it presented with the instant case, would discard that rule in tort actions and adopt the "significant contacts" rule of the Second Restatement of Conflicts as it has already done in contract actions. See Pioneer Credit Corp. v. Carden, 127 Vt. 229, 245 A.2d 891 (1961).2 In response, Delta contends that there exists clear precedent in the Supreme Court of Vermont applying the lex loci rule in tort actions and specifically in wrongful death actions and that this Court is bound under Erie and Klaxon to follow these decisions.

Delta's interpretation of this Court's function in diversity cases under the Erie doctrine is overly restrictive. Early decisions of the Supreme Court represented by Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940), which required automatic application of state court decisions have now been discredited. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). The rulings of a highest state court must be taken as controlling "unless it can be said with some assurance that that Court will not follow them in the future." Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943). This is clearly the view of the Second Circuit. "Due to the continuing development of, and the ongoing changes in, today's concepts of legal liability, we, in determining the state law that we are to apply, cannot permit ourselves to be confined by state court decisional approaches if we have sound grounds to believe that the highest state court would in a case like ours adopt a different approach than approaches in prior cases." Calvert v. Katy Taxi, Inc., 413 F.2d 841, 846 (2 Cir. 1969). See Warner v. Gregory, 415 F.2d 1345 (7 Cir. 1969), cert. dismissed, 397 U.S. 930, 90 S.Ct. 817, 25 L.Ed.2d 112; Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2 Cir. 1967) (On Petition for Rehearing En Banc); Strubbe v. Sonnenschein, 299 F.2d 185 (2 Cir. 1962).

In Hausman v. Buckley, 299 F.2d 696 (2 Cir.), cert. den., 369 U.S. 885, 82 S.Ct. 1157, 8 L.Ed.2d 286 (1962), relied upon by Delta, the Court explicitly recognized that the function of a federal court sitting in diversity is to ascertain what state law "is". Hausman, 299 F.2d at 704. (Emphasis added.) To the extent that Hausman may be read, as it is by Delta, to indicate that where there is a clearly enunciated state rule, automatic adherence to it by federal courts is required, Hausman is contrary to the established position of the Second Circuit. "When a federal court must determine state law, it should not slavishly follow lower or even upper court decisions but ought to consider all the data the highest court of the state would use. See Corbin, The Laws of the Several States, 50 Yale L.J. 762 (1941). Such is the established position of this court." Roginsky, 378 F.2d at 851. (Emphasis added and citations omitted.)

A review of Vermont decisions reveals that the most recent case in which the Vermont Supreme Court applied the lex loci rule in a tort action is Goldman v. Beaudry, 122 Vt. 299, 170 A.2d 636 (1961). That case was decided before the Restatement Second adopted in § 145 the "significant contacts" approach in tort cases and both parties in their briefs in Goldman assumed the applicability of the lex loci rule. Thus, the Vermont Supreme Court has never been presented with an opportunity to reconsider application of the lex loci rule in tort actions in favor of a modern approach.

A review of the Vermont cases in which the lex loci delicti rule has been applied suggests the conclusion that it was adopted and applied in Vermont for no other reason than because it was the prevailing rule. As authority for its application, the Vermont Supreme Court relied on decisions of New Hampshire, New York and Pennsylvania, all of which have abandoned the lex loci rule,3 and the First Restatement of Conflicts, Goldman, supra; Brown v. Perry, 104 Vt. 66, 156 A. 910 (1931). It is not necessary that the decisions of a state court be explicitly overruled in order to lose their persuasive force as indications of what the law is. Mason v. American Emery Wheel Works, 241 F.2d 906 (1 Cir. 1957). In the instant case the abrogation of the lex loci rule by the very authorities relied upon by the Vermont Supreme Court in its decisions applying the rule unquestionably weakens the presidential value of those Vermont decisions. This is especially true in view of the absence in the Vermont decisions of any manifestation of commitment to the rationale of the lex loci rule.

It is significant that in Pioneer Credit Corp. v. Carden, 127 Vt. 229, 245 A.2d 891 (1961), the Vermont Supreme Court applied the Restatement Second approach to choice of law problems in a contract case.4 This ruling constitutes persuasive evidence that the lex loci delicti rule of the First Restatement is no longer the law of Vermont in tort actions. It would be illogical for this Court to conclude that the Vermont Supreme Court would refuse to adopt the Restatement Second approach in tort cases in light of its receptivity to the modern choice of law approach in contract cases and the readiness with which it abandoned the traditional choice of law rule lex loci contractus. Compare Pioneer Credit Corp. v. Carden, supra, and Boston Law Book Co. v. Hathorn, 119 Vt. 416, 127 A.2d 120 (1956), with Resource Holding Co. v. Shoff's Estate, 105 Vt. 144, 163 A. 768 (1933) and Smith v. Anderson, 70 Vt. 424, 41 A. 441 (1891).

Also relevant to a determination of whether the Vermont Supreme Court would apply the traditional rule in these...

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