Jenkins v. Whittaker Corp.

Decision Date24 March 1986
Docket NumberNos. 84-2012,84-2084,s. 84-2012
Citation785 F.2d 720
Parties, 20 Fed. R. Evid. Serv. 654 Perry D. JENKINS, Annabelle Jenkins, and Stuart A. Kaneko as Special Administrator of the Estate of Jeffrey Scott Jenkins, Deceased, Plaintiffs-Appellees-Cross-Appellants, v. WHITTAKER CORPORATION, d/b/a Bermite Corporation, a division of Whittaker Corporation, a California corporation, Defendant-Appellant-Cross-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John D. Thomas, Jr., Cronin, Fried, Sekiya & Kekina, Honolulu, Hawaii, Allan S. Haley, Nevada City, Cal., for plaintiffs-appellees-cross-appellants.

Burnham H. Greeley, Carlsmith, Carlsmith, Wichman & Case, Honolulu, Hawaii, Ronald M. Greenberg, Beverly Hills, Cal., for defendant-appellant-cross-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before TANG and WIGGINS, Circuit Judges, and WILLIAMS, * District judge.

WIGGINS, Circuit Judge.

Defendant Whittaker Corporation ("Whittaker") appeals a judgment of $300,000 against it following a jury verdict in a wrongful death action by the parents and the administrator of the estate of decedent Jeffrey Scott Jenkins (collectively "plaintiffs"). Whittaker alleges the district court erred in various jurisdictional, choice of law, evidentiary, and substantive rulings. Plaintiffs cross-appeal the district court's denial of their motion for prejudgment interest. We have jurisdiction over the appeals under 28 U.S.C. Sec. 1291 (1982). We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Before entering the military, decedent Specialist Fourth Class Jeffrey Scott Jenkins was domiciled in Indiana, and he intended to return there after his enlistment. While in the service, Jenkins lived on a military base on federal government property within the state of Hawaii. Plaintiffs Perry and Annabelle Jenkins, Jenkins's parents, are residents and domicilaries of Indiana. Stuart A. Keneko, a Hawaii citizen, is administrator of Jenkins's estate, which is being probated in Hawaii.

Defendant Whittaker Corporation ("Whittaker") is a California corporation with its principal place of business in Los Angeles. It is a billion-dollar-a-year corporation, with between one and two percent of its revenues coming from its Bermite division. It has no offices, employees, or agent for service of process in Hawaii, nor is it licensed to do business there.

In the early 1970's, Whittaker's Bermite division contracted to supply atomic simulators to the Army, based on the Army's design. 1 Whittaker assembled and delivered one lot of simulators to the Army in Saugus, California, in mid-1974.

On May 11, 1978, as part of demolition training for soldiers at the Pohakuloa Training Area on the island of Hawaii, Jenkins and other personnel of the 65th Engineer Batallion set up two atomic simulators about 50 feet apart. One of these simulators was from the lot provided by Whittaker (the "Whittaker simulator"); the other was manufactured by Pace Corporation (the "Pace simulator").

The Whittaker simulator was set off first and seemed to detonate normally. Engineer personnel then tried several times to detonate the Pace simulator, without success. After waiting between 10 and 30 minutes, Jenkins, Capt. William P. Fitzgerald, and another soldier approached the discharged (but still burning) Whittaker simulator to remove the ignition wires and transfer them to the Pace simulator.

As the party approached the still-burning Whittaker simulator, Jenkins expressed concern about the fire and suggested using a fire extinguisher. Fitzgerald said the fire extinguisher was unnecessary and might be needed later, and Jenkins agreed. While they were transferring the wires, a second explosion occurred, lifting the soldiers off their feet and throwing them back. Jenkins was critically injured and died that evening.

Jenkins's parents brought suit against Whittaker for themselves and on behalf of Jenkins's estate. The jury returned a verdict of $300,000 for the plaintiffs on August 12, 1983, and judgment was entered in that amount on August 29. On September 30, plaintiffs moved for prejudgment interest. The trial court eventually denied the motion as untimely. 2

I. PERSONAL JURISDICTION

Whittaker argues that the trial court in the district of Hawaii had no personal jurisdiction over it. 3 A district court's jurisdiction over the person is a question of law, reviewable de novo by this court. Cubbage v. Merchent, 744 F.2d 665, 667 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985). The trial court's findings of fact are reviewed under the clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Personal jurisdiction requires a two-part showing: (1) that the forum state has an applicable statute conferring jurisdiction on nonresidents, and (2) that the assertion of jurisdiction under the statute comports with constitutional requirements of due process. Colonial Leasing Co. v. Pugh Brothers Garage, 735 F.2d 380, 383 (9th Cir.1984). Hawaii law gives jurisdiction to the full extent allowed by the Constitution, Cowan v. First Insurance Co. of Hawaii, 61 Hawaii 644, 649, 608 P.2d 394, 399 (1980), so the only issue we need address is whether Hawaii's jurisdiction over Whittaker comports with due process.

Whittaker concedes that a manufacturer that sells its products to a distributor with knowledge that the distributor will distribute the product on a nationwide basis may be sued in any jurisdiction in which the product is disseminated. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S.Ct. 559, 567-68, 62 L.Ed.2d 490 (1980). Whittaker asserts, however, that a different standard should apply to manufacturers of military products, limiting suit to the site of manufacture or sale, relying on McKay v. Rockwell International Corp., 704 F.2d 444, 452-53 (9th Cir.1983), cert. denied, 464 U.S. 1043 In light of the findings of fact, which are not disputed here, the trial court properly asserted personal jurisdiction over Whittaker.

                104 S.Ct. 711, 79 L.Ed.2d 175 (1984).  That case, however, deals with the appropriateness of applying the ordinary consumer's expectation of safe product design to users of military products.  Id.  It in no way suggests that a manufacturer of military products who places those products in a nationwide distribution system has different "contacts" with a destination state than an ordinary manufacturer.    See World-Wide Volkswagen, 444 U.S. at 291, 100 S.Ct. at 564
                
II. CHOICE OF LAW

Whittaker argues that the district court erred in applying Hawaii law. 4 Choice of law is a question of law reviewable de novo by this court. See In re McLinn, 739 F.2d 1395, 1398 (9th Cir.1984). 5 Findings of fact by the district court, however, may be reversed by this court only if they are clearly erroneous. McConney, 728 F.2d at 1200.

Both parties correctly note that choice of law is controlled by Peters v. Peters, 63 Hawaii 653, 634 P.2d 586 (1981), the only Hawaii case on the issue. 6 Peters creates a presumption that Hawaii law applies unless another state's law "would best serve the interests of the states and persons involved." Id. at 660, 634 P.2d at 591. 7 Peters involved a suit by a nonresident wife against her nonresident husband for injuries she sustained in Hawaii while riding in a rented car he was driving. Id. at 655, 634 P.2d at 588. The law of their domicile permitted interspousal tort actions; Hawaii law did not. Id. at 656-60, 634 P.2d at 588-91. The Peters court noted Hawaii's unique geographic and economic position and found that:

Our visitors are domiciled throughout the United States and in many foreign countries, and a reliance on the law of the domicile to determine the viability of interspousal actions would neither provide predictability of result nor simplify the judicial task. More importantly, any resulting significant increase in the number of tort actions entertained by our courts will adversely affect premiums indirectly payable by residents of Hawaii who lease "U-Drive" cars, though Hawaii couples remain bound by interspousal immunity and will not benefit from the judicial expansion of compulsory insurance coverage which would be responsible for the premium increase.

Id. at 666, 634 P.2d at 594-95.

The first portion of the Peters court's discussion applies to military personnel In addition, the accident here actually took place in the state of Hawaii, albeit on federal land, and Hawaii has an interest in protecting those within its borders from injury from defective products imported into the state. Whittaker argues that because Jenkins lived and worked on federal land, he was not actually "in Hawaii" for purposes of a choice-of-laws interest analysis. See Foster v. Day & Zimmermann, Inc., 502 F.2d 867, 870-71 (8th Cir.1974). This is too extreme and technical an approach to the choice-of-laws question, however, especially because the occurrence of the accident "in Hawaii" is what requires application of Hawaii choice-of-law rules in the first place. See 16 U.S.C. Sec. 457 (1982).

                as well as tourists. 8   Because of Hawaii's unique strategic position, much of its economy and population depends on the military, just as another large portion depends on tourism.  Military personnel, like tourists, are likely to be domiciled throughout the United States.  In view of the Hawaii court's articulated concern with predictability of result and simplification of the judicial task, this fact supports the application of Hawaii law in this case.    See Jenkins v. Whittaker Corp., 545 F.Supp. 1117, 1118 (D.Hawaii 1982) (district court's order relying on this ground).
                

Whittaker claims that California or Indiana law should be applied. Whittaker never specifies, however,...

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