IN RE AIR CRASH AT CHARLOTTE, NC ON JULY 2, 1994, 3:95-1041-17. MDL 1041.

• Decision Date: 21 February 1997
• Docket Number: No. 3:95-1041-17. MDL 1041.,3:95-1041-17. MDL 1041.
• Citation: 982 F.Supp. 1084
• Court: U.S. District Court — District of South Carolina
• Parties: In re AIR CRASH AT CHARLOTTE, NORTH CAROLINA ON JULY 2, 1994.

982 F.Supp. 1084

In re AIR CRASH AT CHARLOTTE, NORTH CAROLINA ON JULY 2, 1994.

No. 3:95-1041-17. MDL 1041.

United States District Court, D. South Carolina, Columbia Division.

February 21, 1997.

James Wilton Orr, Bowers, Orr & Dougall, Columbia, SC, Lawrence Edward Richter, Jr., The Richter Firm, P.A., Mt. Pleasant, SC, William Parham Simpson, Haynsworth, Marion, McKay & Guerard, Columbia, SC, Michael L. Baum, Kananack, Murgatroyd, Baum & Hedlund, Los Angeles, CA, Frank H. Granito, Speiser, Krause, Madole & Nolan, New York City, Marc Moller, Lori B. Lasson, Kreindler & Kreindler, New York City, David E. Rapoport, Rapoport & Kupets Law Offices, Rosemont, IL, for Plaintiff's Steering Committee.

Mark A. Dombroff, Tom Almy, Dombroff and Gilmore, Washington, DC, Edward Wade Mullins, Jr., Nelson, Mullins, Riley & Scarborough, Columbia, SC, Richard B. Watson, Nelson, Mullins, Riley & Scarborough, Charleston, SC, for Defendant USAir.

Patrick E. Bradley, Douglas Coleman, United States Department of Justice, Torts Branch, Civil Division, Washington DC, Raymond E. Clark, Assistant United States Attorney, Columbia, SC, for Defendant U.S.

ORDER GRANTING MOTIONS TO CONDUCT DEPOSITIONS DURING TRIAL

JOSEPH F. ANDERSON, Jr., District Judge.

Presently before the court is plaintiffs' motion to take the depositions of two persons who are not parties or previously named witnesses in this multidistrict litigation which is presently in its fifth week of trial. Due to the circumstances discussed below, the court will grant this extraordinary request.

On the morning of February 20, 1997, the court was contacted by the Plaintiffs' Steering Committee requesting an in camera discussion relating to "critical and urgent matters of impeachment of witnesses." As this court has done previously with both parties, the court granted this request. It quickly became obvious to the court that plaintiffs were raising two significant issues: first, matters related to the impeachment of a surprise impeachment witness named by defendant (Captain Edward Davidson); and second, interrelated matters of witness intimidation that might possibly involve this impeachment witness as well as a much larger group, the Air Line Pilot's Association ("ALPA") and possibly others.

The court found these to be very significant allegations which, while appropriately brought to the court's attention through an in camera discussion, could not be properly addressed without allowing the opposing party to provide input. The court, therefore, advised plaintiffs that if they desired to pursue the matter, they should raise it in court outside of the jury's presence, providing any supporting materials to all parties and making those materials a part of the court record at that time. Plaintiffs did so prior to the lunch break on February 20, 1997.

After a thorough review of the plaintiffs' submission which consisted primarily of electronic bulletin board communications to and regarding plaintiffs' expert witness, Captain Patrick Clyne, the court agreed that the content was reasonably susceptible to an inference that serious threats were being made to Captain Clyne.¹ Notably, the electronic bulletin board at issue was one accessible only by ALPA union members and the vast majority of the communications were written to or by a member of the Executive Committee of the local union to which plaintiffs' expert belongs.² The communications indicate that this official, "Rich Siakel," was the person who initiated an earlier censure of Captain Clyne for allegedly violating the union's ethics code by testifying as a paid expert witness in this trial. Siakel discusses a proposal to bar Clyne from the union, but expressly states that he will delay filing until the present trial ends because "plaintiff's attorneys have already attempted to attack the defense with `ALPA's' (actually mine) attempt to censure Clyne."³

In an early communication, Siakel indicates that he has communicated with "our V.P. of Flight Operations," who, from the title and context, may be a management official with Northwest Airlines. Other communications relating to stripping Captain Clyne of awards previously given him by the union because he has testified in the present trial, are authored by or directed to "Dick Duxbury." A number by various authors refer to defendant's proposed impeachment witness, Captain Edward Davidson. In addition, a February 13, 1997 communication by Siakel refers to review of "hundreds of pages of Clyne's...