IN RE PARIS AIR CRASH OF MARCH 3, 1974

• Decision Date: 10 February 1977
• Docket Number: No. MDL 172.,MDL 172.
• Citation: 427 F. Supp. 701
• Court: U.S. District Court — Central District of California
• Parties: In re PARIS AIR CRASH OF MARCH 3, 1974.

427 F. Supp. 701

In re PARIS AIR CRASH OF MARCH 3, 1974.

No. MDL 172.

United States District Court, C. D. California.

February 10, 1977.

F. Lee Bailey, Aaron J. Broder, by Seymour Madow, New York City, Butler, Jefferson, Fry & Dan, by James G. Butler, James M. Jefferson, Jr., Robert P. Fry, Michael A. K. Dan, Moses A. Lebovits, Los Angeles Cal., Krutch, Lindell, Donnelly, Dempcy, Lageschulte & Judkins, P.S. by Richard F. Krutch, Vernon T. Judkins, Seattle, Wash., Lewis, Wilson, Cowles, Lewis & Jones, Ltd. by Richard H. Jones, Arlington, Va., McGrail & Nordlund by Joseph V. McGrail, Alexandria, Va., Magana, Cathcart & McCarthy by Daniel C. Cathcart, James J. McCarthy, Los Angeles, Cal., Morgan, Wenzel & McNicholas by Wm. Marshall Morgan, Los Angeles, Cal., Chase, Rotchford, Drukker & Bogust by Henry J. Bogust, Los Angeles, Cal., Goldfarb & Singer, Washington, D.C., Green, Royce & Seaman by Irving H. Green, Beverly Hills, Cal., Hodge & Hodges by John R. Skoog, Los Angeles, Cal., Horgan & Robinson by Mark P. Robinson, Los Angeles, Cal., Kreindler & Kreindler by Lee S. Kreindler, Marc S. Moller, Melvin I. Friedman, New York City, David H. Noble, Los Angeles, Cal., Paul, Weiss, Rifkind, Wharton & Garrison by Joseph S. Iseman, John J. O'Neil, New York City, Shahin & Wawro by James Wawro, Los Angeles, Cal., Sherman & Schwartz by Arthur Sherman, Beverly Hills, Cal., Speiser & Krause by Stuart M. Speiser, Charles F. Krause, New York City, Speiser, Krause & Madole by Donald W. Madole, A. George Glasco, Juanita M. Madole, Washington, D.C., Walkup, Downing & Sterns by Gerald C. Sterns, Thomas G. Smith, San Francisco, Cal., Walsh & Levine by Laurence W. Levine, New York City, for plaintiffs.

Kirtland & Packard by Robert C. Packard, Jacques Soiret, Los Angeles, Cal., Mendes & Mount by James M. FitzSimons, Joseph Asselta, New York City, Tuttle & Taylor by William A. Norris, Joseph R. Austin, Charles Rosenberg, Ronald C. Peterson, Los Angeles, Cal., Belcher, Henzie & Biegenzahn by Leo J. Biegenzahn, Los Angeles, Cal., for McDonnell Douglas.

Adams, Duque & Hazeltine by Thomas F. Call, Los Angeles, Cal., Condon & Forsyth by George N. Tompkins, Jr., Desmond T. Barry, Jr., Frank A. Silane, New York City, Latham & Watkins by Philip F. Belleville, A. Victor Antola, Thomas L. Harnsberger, Los Angeles, Cal., Shaw, Pittman, Potts & Trowbridge by Phillip D. Bostwick, Jay H. Bernstein, Washington, D.C., for Turkish Airlines, Inc.

Overton Lyman & Prince by Fred S. Lack, Jr., Brenton F. Goodrich, Gregory A. Long, Ernest E. Johnson, Los Angeles, Cal., for General Dynamics.

William D. Keller, U.S. Atty., by James R. Dooley, Asst. U.S. Atty., Los Angeles, Cal., George E. Farrell, John G. Laughlin, Special Atty., Herbert L. Lyons, Special Atty., Tort Claims Section, Aviation Unit, Civ. Div., Dept. of Justice, Washington, D.C., Neil R. Eisner, Federal Aviation Administration, Washington, D.C., for the United States.

Before HALL and REAL, District Judges.

Defendants have renewed their motion to dismiss the claims of plaintiffs for punitive damages for the alleged wrongful death of relatives arising out of the Paris Air Crash of March 3, 1974. Defendants have also renewed their motion for summary judgment on the same issue.¹

The Court by the Honorable Peirson M. Hall has previously decided that California law shall control the processing and trial of these cases. The re-affirmation of that decision requires that the Court now renew consideration of the questions raised by defendants' motions and plaintiffs' contention thereto that the law of California upon punitive damages in wrongful death cases is 1. wrongly decided by California courts and 2. the interpretation of the California statutes by the courts of California compels an application which is violative of the United States and California constitutional provisions requiring equal protection of the laws.

These cases² invoke the diversity jurisdiction (among other grounds) of this Court and consonant with the doctrine expressed in Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) this Court must apply the law of the State of California as interpreted in the appellate decisions of that state's appellate courts. In other words, in applying state law this Court sits as a state trial court bound by the same appellate authority as a state trial judge. Disagreeing with the interpretation of state appellate courts in Lange v. Schoettler, 115 Cal. 388, 47 P. 139 (1896); Fox v. Oakland Con. St. Ry., 118 Cal. 55, 50 P. 25 (1897); Doak v. Superior Court, 257 Cal.App.2d 825, 65 Cal.Rptr. 193 (1968); Pease v. Beech Aircraft Corp., 38 Cal.App.3d 450, 113 Cal. Rptr. 416 (1974); and Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976) does not permit this Court to rule to the contrary. California appellate courts have held that punitive damages cannot be recovered in wrongful death cases, although allowable in personal injury, libel, property damage and other cases where the tortious conduct is oppressive, fraudulent or malicious.³

Defendants argue that the application of these cases ends the controversy. So simplistic a solution to what is threatened as monumental litigation is tempting. But this Court sits as both a state and federal court to decide issues of California and United States constitutional law. In the former, it acts under the compulsion of California authority. As to the latter, it sits unfettered by any compelling authority of California appellate decisions, and acts only under compulsion of Ninth Circuit and United States Supreme Court decisions. Since Lange, Fox, Doak, Pease and Tarasoff (supra) just have not addressed the constitutional attack made by plaintiffs⁴ relying on both California and United States constitutional requirements of equal protection, this Court is free to decide the issue from its own consideration of the law. It is in this context that this Court now undertakes to decide the issue of punitive damages raised in this litigation.

The cause of action for wrongful death is found in the language of California Code of Civil Procedure § 377⁵ which provides in pertinent part:

§ 377. Wrongful death of adults or certain minors; parties; right of action; damages; consolidation of actions

When the death of a person . . . is caused by the wrongful act or neglect of another, his heirs, and his dependent parents, if any, who are not heirs, or personal representatives on their behalf may maintain an action for damages against the person causing the death. . . . In every action under this section, such damages may be given as under all the circumstances of the case, may be just, but shall not include damages recoverable under Section 573 of the Probate Code. . . .

Necessary to a consideration of constitutional infirmity or validity of a particular legislative enactment or its application by the courts is an analysis of what the underlying statutory provision does or does not do.

California Code of Civil Procedure § 377 creates in certain persons (all plaintiffs herein) a right to sue for wrongful death. It provides for "damages . . . as under all the circumstances of the case, may be just . . ." It excludes damages which are otherwise recoverable pursuant to California Probate Code § 573.⁶ Neither the inclusion of damages that are just, nor the exclusion of damage recoverable by the estate address themselves to the question of punitive damages. Facially, then, Section 377 shows no constitutional infirmity because it does not address the matter of punitive damages. Punitive damages, except in certain very limited circumstances not pertinent here, are the subject of California Civil Code § 3294. That section provides:

§ 3294. Exemplary damages; when allowable

In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

The unequivocal language of Section 3294 is applicable to all torts including wrongful death cases — i. e., "an action for the breach of an obligation not arising from contract . . .." Plaintiffs do not make a frontal attack on either California Code of Civil Procedure § 377 or California Civil Code § 3294 as unconstitutional. The thrust of plaintiffs' arguments is that application by California courts of C.C.P. § 377 or C.C. § 3294 in a manner which would deny them the right to recover punitive damages violates the equal protection of the law guaranteed by the California and United States Constitutions.

Equal protection — its definition and its availability to litigants in a United States constitutional sense is not one of easy resolution. If anything is clear from a distillation of judicial thought on the subject it is that equal protection is at least a two edged sword sharpened or blunted by the concepts of strict scrutiny⁷ or rational basis⁸ as the measure of constitutional concern for state action. The inquiry here is whether or not there is a rational basis for applying C.C.P. § 377 in such a manner as to deny wrongful death survivors punitive damages.

Punitive damages like class actions have been highly praised and roundly denounced depending upon who is paying the piper. It is not the intent of this Court either to condemn or place its imprimatur on the theory of punitive damages in tort cases. That subject must abide another forum. California has, however, spoken upon the subject in unequivocal language in C.C. § 3294 permitting punitive damages, without limitation in tort cases for the purpose of punishing and deterring tortious conduct. Coats v. Construction and General Laborer's Local No. 185, 15 Cal.App.3d 908, 93 Cal.Rptr. 639 (1971); Fletcher v. Western National Life Insurance Company, 10 Cal. App.3d 376, 89 Cal.Rptr. 78 (1970).

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