IN RE AIR CRASH DISASTER AT STAPLETON INTERN., MDL No. 751.

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Writing for the Court: SHERMAN G. FINESILVER
• Citation: 720 F. Supp. 1505
• Parties: In re AIR CRASH DISASTER AT STAPLETON INTERNATIONAL AIRPORT, DENVER, COLORADO, ON NOVEMBER 15, 1987.
• Docket Number: MDL No. 751.
• Decision Date: 18 July 1989

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In re AIR CRASH DISASTER AT STAPLETON INTERNATIONAL AIRPORT, DENVER, COLORADO, ON NOVEMBER 15, 1987.

MDL No. 751.

United States District Court, D. Colorado.

June 7, 1989.

Opinion on Amended Judgment and Prejudgment Interest June 7, 1989.

Order on Motions to Reconsider July 18, 1989.

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ORDER MDL 751-39

MEMORANDUM OPINION AND ORDER ON POST-TRIAL MOTIONS FOR SUMMARY JUDGMENT AND DISMISSAL

SHERMAN G. FINESILVER, Chief Judge.

This multidistrict litigation involves claims for personal injury and wrongful death arising out of the crash of a commercial airliner. Plaintiffs are passengers,

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members of the crew, and surviving relatives of the victims of the crash. Defendants are Continental Airlines, Inc., and Texas Air Corporation. In January of 1989, consolidated claims were presented to a jury through an exemplar trial. The exemplar trial verdict resolves certain claims in favor of plaintiffs and others in favor of defendants. The issue before the court is the effect of that verdict on all multidistrict cases pending in this court

In this memorandum opinion and order, we hold: (1) cases consolidated for resolution through the exemplar trial, by order of the court or confession of the parties, are bound by the result of the exemplar trial, (2) all claims and defenses remain at issue in passenger cases filed or transferred after consolidation under applicable principles of collateral estoppel, and (3) voluntary dismissal of cases brought by crew-member plaintiffs will not result in legal prejudice to defendants.

I. INTRODUCTION.

The matter comes before the court on several motions of defendants.¹ Two crew-member plaintiffs move for voluntary dismissal. Pending motions fall into two categories: (1) whether exemplar trial verdicts apply in all cases, and (2) whether any plaintiff may recover on claims under the Texas Deceptive Trade Practices Act. Defendants seek to bind all plaintiffs to the verdicts returned in the exemplar trial. The Plaintiffs Steering Committee contends that verdicts decided in favor of defendants are binding only against exemplar trial plaintiffs Karen Svea Johnson and her husband Robert Cooke, Jr. Compensatory damage claims of these plaintiffs were selected to serve as a backdrop for resolution of common issues of liability in the exemplar trial.²

By order of November 29, 1988, all cases filed in this District or transferred here by order of the Judicial Panel on Multidistrict Litigation were formally transferred to this court for trial pursuant to 28 U.S.C. ? 1404. Counsel for all parties agreed that an exemplar trial would resolve specific issues common to all cases pending at that time: (1) liability for negligence, (2) liability for unlimited compensatory damages under Idaho law, (3) liability for punitive damages, and (4) potential liability for violations of the Texas Deceptive Trade Practices Act. This procedure was approved and implemented by orders of the court.

Claims of Karen Svea Johnson, a passenger injured in the crash, and Robert Cooke, Jr., her husband, were selected for trial as the exemplar case by their counsel and the Plaintiffs Steering Committee. The Johnson case was filed in Idaho, transferred to this district for pretrial proceedings by order of the Judicial Panel, and subsequently transferred to the court for trial by our order of November 29, 1988. In addition to common liability issues, issues specific to these plaintiffs were also presented during the exemplar trial: (1) compensatory damages on claims for personal injury and loss

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of consortium, (2) causation under the Texas Deceptive Trade Practices Act, and (3) damages under the Deceptive Trade Practices Act. The over-all amount of punitive damages to be awarded was severed and reserved for subsequent determination, if necessary

At the conclusion of a three-week trial, the jury found (1) Continental Airlines is liable in tort for injuries incurred in the crash of Flight 1713, (2) defendant's conduct was either willful or reckless, precluding the court from limiting non-economic damages under Idaho law, (3) defendant was not grossly negligent and should not be held liable for punitive damages under Texas law, and (4) defendant's trade practices were deceptive, as defined by Texas law, but these practices did not cause injury to plaintiff Karen Johnson.³ By order of March 10, 1989, the court denied plaintiffs' motions for judgment notwithstanding the verdict on claims for punitive damages or new trial on all claims. See In re Air Crash Disaster at Stapleton Int'l Airport, Order MDL 751-33, 720 F.Supp. 1467 (D.Colo. March 10, 1989).

In Order MDL 751-33, the court overruled plaintiffs' objections to procedures applied to try the consolidated claims for liability and punitive damages. In this order, we expressly extend that holding to all cases consolidated for trial and determine the status of claims pending in cases transferred to or filed in this district subsequent to the order of consolidation.

The exemplar trial proceeded as a consolidated trial on specific issues pursuant to court order of November 29, 1988. The exemplar trial established (1) defendant Continental Airlines, Inc. is liable in tort for 100% of the damages to be proven by consolidated plaintiffs, (2) consolidated Idaho plaintiffs are not subject to the non-economic damage limitation of Idaho Code ? 6-1603, (3) Continental is not liable for punitive damages in the consolidated cases, (4) Texas Air Corporation is not liable to consolidated plaintiffs on a theory of corporate alter-ego, and (5) Continental's 1987 advertising campaign amounted to a deceptive trade practice.

In adherence to the trial plan adopted for this litigation, plaintiffs and defendants in all cases pending in this district prior to November 29, 1988 are bound to the verdicts returned in the exemplar trial; compensatory damage awards and alternative liability for deceptive trade practices remain at issue in these cases.

As to cases filed in or transferred to this court subsequent to November 29, 1988, the cases were not consolidated. The status of claims pending in these cases turns on principles of collateral estoppel. Equity does not allow these claimants to take only plaintiffs' verdicts from the exemplar trial without being bound by verdicts in favor of defendants. All claims and defenses remain at issue in eight of the ten later filed cases. In two cases, complaints filed prior to trial bind plaintiffs to the verdicts.

Crew member plaintiffs are entitled to voluntary dismissal of their federal cases. Defendants will suffer no legal prejudice in being compelled to litigate issues of collateral estoppel in Texas state court.

II. CONSOLIDATION.

Motions before the court require that we distinguish between cases bound by the verdicts in the exemplar trial as a matter of law, and cases in which the effect of the exemplar trial is determined by principles of collateral estoppel. In this section of the opinion, we find that cases pending in this court on November 29, 1988 are bound by the verdicts of the exemplar trial.

In Order MDL 751-17, all pending cases were formally transferred to the District of Colorado pursuant to 28 U.S.C. ? 1404.⁴ Pending cases were consolidated for trial on common law tort liability, punitive damages liability, and common issues under the

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Texas Deceptive Trade Practices Act, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. Defendants' motion for summary judgment on claims for punitive damages and against Texas Air Corporation seeks to extend the effect of that order to all cases arising out of the crash of Flight 1713.⁵ Defendants contend that the record at trial, including the testimony of two plaintiffs whose claims were not pending in this court upon entry of Order MDL 751-17, indicates that the parties contemplated joint trial on all claims which might arise out of the crash.⁶

In multidistrict litigation, fairness and efficiency do not warrant entry of consolidation orders in cases that have not been transferred or filed. See Pan American World Airways, Inc. v. United States District Court, 523 F.2d 1073, 1077, 1080 (9th Cir.1975). Basic principles of due process prevent the court from entering orders which would have the effect of consolidating claims of plaintiffs who are not yet parties before that court. Id., at 1077, 1080; In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341, 344 (S.D. N.Y.1974), aff'd 515 F.2d 505 (2d Cir.1975); Ore & Chemical Corp. v. Stinnes Interoil, Inc., 606 F.Supp. 1510, 1514 (S.D.N.Y. 1985). A multidistrict case is not pending in a transferee court for purposes of consolidation until: (1) the Judicial Panel on Multidistrict Litigation transfers the case for consolidated pretrial proceedings pursuant to 28 U.S.C. ? 1407, and (2) the transferee court subsequently transfers the case to its own District for all purposes pursuant to 28 U.S.C. ? 1404(a). See Order MDL 751-17, at 1458 (citing cases); Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 581-82 (1978).

Twenty-eight (28) cases are pending in this litigation.⁷ Sixteen (16) cases were formally transferred for consolidated trial by Order MDL 751-17 on November 29, 1988.⁸ Whether entry of judgment is appropriate in these cases requires consideration of plaintiffs' objections to the procedures of the exemplar trial. Five (5) passenger cases and two (2) crew-member cases were filed in or transferred to the District of Colorado after November 29, 1988 and not consolidated for trial by subsequent order.⁹ An additional five (5) cases filed in the District of Idaho were recently transferred to this court by order

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of the Judicial...