In re Air Crash Disaster at Stapleton Intern.

• Decision Date: 02 December 1988
• Docket Number: 88-F-898,88-F-667,MDL No. 751,88-F-787,88-F-830 to 88-F-832,88-F-671,88-F-348,88-F-991 and 88-F-1358.,88-F-990,88-F-668,88-F-663 to 88-F-665,88-F-346,No. 87-F-1922,88-F-661,88-F-670,87-F-1922
• Parties: In re AIR CRASH DISASTER AT STAPLETON INTERNATIONAL AIRPORT, DENVER, COLORADO, ON NOVEMBER 15, 1987. Hugh FORD and Julia Ford v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Brenda A. SELLEH and J. Mark Selleh v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Diane Mae McELHENEY and Gary McElheney v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Libby SMOOT v. CONTINENTAL AIRLINES CORP. Kathleen A. COOPER and Dale Cooper, wife and husband v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Karen Svea JOHNSON and Robert Cooke, Jr., wife and husband v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Shirley Jean WELTZ and Marvin Richard Weltz, wife and husband v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Christopher DAVIS, a minor, by Jerry DAVIS and Linda Davis, and Jerry Davis, individually v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Angela TLUCEK, a minor, by Jerry TLUCEK and Mary Lou Tlucek, and Jerry Tlucek and Mary Lou Tlucek, individually v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Wayne DAVIS v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. David DANIEL v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Robert O. LINCK and Joanne Linck, his wife v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Deborah PASCHKOV, for herself, and as guardian ad litem for Melissa Richard v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Patti L. HALFORD and Donald M. Halford v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Jeffrey HOAGLAND, a minor, by Mark W. HOAGLAND and Marie Hoagland v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. Ann C. STEWART, for John McCabe STEWART, a minor, Donald Douglas Stewart, Lueann Stewart, and Linda Butterfield, widow v. CONTINENTAL AIRLINES CORP., Texas Air Corp. Keith SMITH and Loretta Smith v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. v. Byron OWENS (subject to realignment). Michael SPICER v. CONTINENTAL AIRLINES CORP. Douglas SELF and Debbie Self v. CONTINENTAL AIRLINES CORP. and Texas Air Corp., jointly and severally.
• Court: U.S. District Court — District of Colorado

720 F. Supp. 1455

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

Hugh FORD and Julia Ford v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Brenda A. SELLEH and J. Mark Selleh v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Diane Mae McELHENEY and Gary McElheney v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Libby SMOOT v. CONTINENTAL AIRLINES CORP.

Kathleen A. COOPER and Dale Cooper, wife and husband v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Karen Svea JOHNSON and Robert Cooke, Jr., wife and husband v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Shirley Jean WELTZ and Marvin Richard Weltz, wife and husband v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Christopher DAVIS, a minor, by Jerry DAVIS and Linda Davis, and Jerry Davis, individually v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Angela TLUCEK, a minor, by Jerry TLUCEK and Mary Lou Tlucek, and Jerry Tlucek and Mary Lou Tlucek, individually v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Wayne DAVIS v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

David DANIEL v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Robert O. LINCK and Joanne Linck, his wife v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Deborah PASCHKOV, for herself, and as guardian ad litem for Melissa Richard v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Patti L. HALFORD and Donald M. Halford v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Jeffrey HOAGLAND, a minor, by Mark W. HOAGLAND and Marie Hoagland v. CONTINENTAL AIRLINES CORP. and Texas Air Corp.

Ann C. STEWART, for John McCabe STEWART, a minor, Donald Douglas Stewart, Lueann Stewart, and Linda Butterfield, widow v. CONTINENTAL AIRLINES CORP., Texas Air Corp.

Keith SMITH and Loretta Smith v. CONTINENTAL AIRLINES CORP. and Texas Air Corp. v. Byron OWENS (subject to realignment).

Michael SPICER v. CONTINENTAL AIRLINES CORP.

Douglas SELF and Debbie Self v. CONTINENTAL AIRLINES CORP. and Texas Air Corp., jointly and severally.

MDL No. 751, Nos. 87-F-1922, 88-F-346, 88-F-348, 88-F-661, 88-F-663 to 88-F-665, 88-F-667, 88-F-668, 88-F-670, 88-F-671, 88-F-787, 88-F-830 to 88-F-832, 88-F-898, 88-F-990, 88-F-991 and 88-F-1358.

United States District Court, D. Colorado.

November 29, 1988.

Motion to Correct December 2, 1988.

On Motion to Correct Order MDL 751-16 December 2, 1988.

ORDER MDL 751-17

MEMORANDUM OPINION AND ORDER ON TRANSFER, CONSOLIDATION, AND TRIAL PROCEDURE

SHERMAN G. FINESILVER, Chief Judge.

This multidistrict action deals with damages claimed as a result of injuries and fatalities incurred in an airplane crash in Denver, Colorado on November 15, 1987. The instant matter involves the parties' joint motion to transfer the cases to the District of Colorado for resolution of the issues of liability for compensatory and punitive damages through an exemplar trial and consolidation of several cases.

The just and efficient resolution of this multidistrict litigation will be served by a trial plan which consolidates all cases in the District of Colorado for resolution of common issues. By this order, we transfer the above referenced cases to the District of Colorado pursuant to 28 U.S.C. § 1404(a). Common law tort liability and punitive damages issues are bifurcated from compensatory damage issues.¹ Issues of liability and punitive damages in all cases are consolidated pursuant to Rule 42(a) for resolution through an exemplar trial. Resolution of these issues will proceed through trial of liability, compensatory damage claims and punitive damages in two cases. The case of Karen Svea Johnson, et al. v. Continental Airlines Corp., D.Colo. Case No. 88-F-664 (D.Idaho Case No. Civ. 88-1075), is consolidated for trial of certain issues with the case of Hugh F. Ford, et al. v. Continental Airlines Corp. et al., D.Colo. Case No. 87-F-1922, pursuant Rule 42(a) of the Federal Rules of Civil Procedure. The consolidated Ford/Johnson case will serve as the exemplar trial.

I.

The court has jurisdiction over these civil actions pursuant to 28 U.S.C. § 1332, diversity of citizenship. On April 14, 1988, the Judicial Panel on Multidistrict Litigation conferred jurisdiction upon this court for consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. In re Air Crash Disaster at Stapleton Int'l Airport, 683 F.Supp. 266 (J.P.M.L.1988). A transferee court presiding over diversity actions consolidated as multidistrict litigation has the power under 28 U.S.C. § 1404(a) to transfer actions in its charge to itself for all purposes if such transfer satisfies the criteria set out in that statute. In re Fine Paper Antitrust Litigation, 685 F.2d 810, 820 (3d Cir.1982); Pfizer, Inc. v. Lord, 447 F.2d 122, 124-25 (2d Cir.1971); In re Longhorn Securities Litigation, 573 F.Supp. 274, 276 (W.D.Ok.1983); In re 1980 Decennial Census Adjustment Litigation, 506 F.Supp. 648, 650-51 (J.P.M.L.1981); Weigel, The Judicial Panel On Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 581 and nn. 42-44 (1978) (and all cases cited therein); see also Rule 11(b) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation; Manual for Complex Litigation, Second, §§ 31.12 n. 8, 31.122 (1985).

To effectuate transfer, 28 U.S.C. § 1404(a) requires (1) that the action could have been brought in the transferee court, and (2) that the transfer will serve the convenience of the parties, the convenience of non-party witnesses, and the interests of justice.

Venue is proper in the District of Colorado. Defendants do business in the state, and the claims arise out of an air crash in Colorado. 28 U.S.C. § 1391(a) & (c).

Rule 1 of the Federal Rules of Civil Procedure requires the court to apply the Rules to obtain the "just, speedy, and efficient" resolution of disputes. This objective broadens our view of convenience to the parties in this multidistrict litigation. In re Dow Co. Sarabond Products Liability Litigation, 664 F.Supp. 1403, 1404 (D.Colo.1987). When considering transfer and consolidation for resolution of common issues, the court must consider the overall convenience of all of the parties and witnesses rather than the convenience of each individual involved in the cases. In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 333 F.Supp. 299, 304 (S.D.N.Y.1971). Transfer to the District of Colorado serves the convenience of the witnesses and the parties as well as the interests of justice. Among significant factors are: (1) joint motion of the parties to transfer the litigation to this district; (2) location of the document depository at the University of Denver, College of Law; (3) parties' assertions at the November 2, 1988 Status Conference that ninety (90) to one-hundred (100) percent of the liability witnesses and evidence are identical for each case; (4) a large number of the non-party liability witnesses to this action reside and are employed in Denver, Colorado; (5) counsel designated to try the exemplar case reside in Colorado; and (6) the liability phase of this litigation involves issues familiar to this court. Judicial efficiency and the interests of the parties in speedy resolution of the issues is not served by remanding these cases to their originating districts at this time. See In re Fine Paper Antitrust Litigation, 685 F.2d 810, 820 & n. 7 (3d Cir.1982); Pfizer, Inc. v. Lord, 447 F.2d 122, 125 (2d Cir.1971). Sound and fair case management argues against that course of action.

Accordingly, all cases pending in this court pursuant to the conditional transfer order of the Judicial Panel on Multidistrict Litigation are transferred to the District of Colorado pursuant to 28 U.S.C. § 1404(a).

II.

Upon determination of common issues, cases transferred to the District of Colorado by this order will be retransferred to the districts in which they originated. The approach outlined herein is appropriate for determination of liability issues in air crash cases where all plaintiffs were allegedly injured by a single set of acts. Winbourne v. Eastern Airlines, Inc., 632 F.2d 219, 227 (2d Cir.1980); see, e.g., Dispenza v. Eastern Airlines, Inc., 508 F.Supp. 239, 242 (E.D.N.Y.1981); In re Multidistrict Civil Actions Involving Air Crash Disaster Near Hanover, N.H., 314 F.Supp. 62, 63 n. 1 (J.P.M.L.1970).

A court may bifurcate issues for trial to different juries where the practice is designed to avoid prejudice and to further convenient, expeditious and economical resolution of the issues. Fed.R.Civ.P. 42(b). Similarly, when common questions of law or fact are pending before the court, those issue may be consolidated to serve the same interests. In air crash litigation, bifurcation of liability issues from compensatory damages serves these interests without giving rise to constitutional, procedural, or practical difficulties. Martin v. Bell Helicopter Co., 85 F.R.D. 654, 657-61 (D.Colo.1980) (analyzing various issues); see also Dispenza v. Eastern Airlines, Inc., 508 F.Supp. 239, 242 (E.D.N.Y.1981); Manual for Complex Litigation, Second, §§ 33.23, 33.26 (1985). Bifurcation of damages issues from liability issues is appropriate because (1) issues are substantially separate and distinct; (2) bifurcation reduces the burden of preparation for trial on damage issues if such a determination proves unnecessary; (3) separate determination of liability may resolve various issues frustrating settlement of the cases and prevent the need for damage trials; and (4) bifurcation permits the efficient consolidation of identical issues for resolution at one time. Martin, 85 F.R.D. at 658-59; cf. In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, slip op., MDL 657 (N.D. Tex. June 13, 1988) (value of determining certain issues at separate trial before proceeding with costly litigation of all issues). Consolidation of liability and punitive damage issues avoids the potential that disparate liability verdicts will be...