Lacey v. Cessna Aircraft Co.

Decision Date27 April 1990
Docket NumberCiv. A. No. 87-1506.
Citation736 F. Supp. 662
PartiesGraeme MacArthur LACEY, Plaintiff, v. CESSNA AIRCRAFT COMPANY, a corporation; Hanlon & Wilson Company, a corporation; Teledyne, Inc., a corporation; and John Does 1-10, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Michael Louik, Berger, Kapetan, Malakoff & Meyers, P.C., Pittsburgh, Pa., for plaintiff.

Donald W. Bebenek, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for Cessna Aircraft Co.

Eric P. Reif, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for Teledyne, Inc. Robert L. Potter, Strassburger, McKenna, Gutnick & Potter, Pittsburgh, Pa., for Hanlon & Wilson Co.


COHILL, Chief Judge.

This matter comes to us on remand from the Court of Appeals on the issue of forum non conveniens. On remand the parties have submitted extensive affidavits and supplemental briefs. For the reasons stated below, on the record presented, we conclude that dismissal on forum non conveniens grounds is necessary and appropriate. We have however conditioned dismissal on certain points which will permit plaintiff to institute suit in an alternative forum with a minimum of inconvenience.


The basic facts have been set forth twice before in published Opinions,1 and we are loathe to bore the reader with a third recitation. Nonetheless, a nutshell summary is in order.

Plaintiff is an Australian citizen who was working in Canada. On July 20, 1985 plaintiff boarded an intra-Canada flight. The flight crashed in Canada, causing plaintiff severe personal injuries. Plaintiff filed this suit alleging that the engine and its component parts were defective and had caused the crash. Defendants have responded by denying the defect and blaming the accident on the Canadian pilot and the Canadian maintenance crew, none of whom are parties here. The three defendants in this action are all based in the United States, but only Hanlon & Wilson (H & W) is headquartered in Pennsylvania.

Soon after this action was filed, defendants moved to dismiss on the basis of forum non conveniens. The case was assigned to the Honorable Gerald J. Weber and in his no-nonsense, "cut to the chase" style, Judge Weber granted the motion. 674 F.Supp. 10 (W.D.Pa.1987). The Court of Appeals subsequently vacated on several grounds and remanded for further consideration. 862 F.2d 38 (3rd Cir.1988). After Judge Weber's untimely passing, this matter fell to the undersigned.

On remand, we are mindful of the appellate court's conclusion that defendants failed to submit supporting evidentiary material with the original motions and that Judge Weber failed to make sufficiently detailed findings. In this regard, we note that few, if any, of the salient facts on this issue have been disputed. Nonetheless the parties have heeded the higher court's words with a vengeance, heaping numerous affidavits on the court to establish the undisputed.


First of all, we note that the Canadian Province of British Columbia is a suitable alternative forum. The accident occurred in British Columbia, the defendants are willing to submit to jurisdiction there, and plaintiff has not complained that he would be unable to obtain appropriate redress there.

Secondly, we recognize that a certain presumption attaches to plaintiff's choice of forum, and that choice is not to be lightly disturbed. However, the degree of deference to be accorded plaintiff's choice of forum in this case is problematic. Because plaintiff is a foreign national with no connection to the forum, his choice is not entitled to the same degree of deference accorded a resident or citizen who chooses his home forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 and n. 23, n. 24, 102 S.Ct. 252, 265-66 and n. 23, n. 24, 70 L.Ed.2d 419, 435-36 and n. 23, n. 24 (1981). On the other hand, the Court of Appeals in remanding this case has indicated that, because plaintiff is forced to choose between two inconvenient foreign fora, his choice is due "at least some weight." 862 F.2d at 46. Of course, this provides little direction and is impossible to quantify, see Lony v. E.I. DuPont de Nemours & Co., 886 F.2d 628, 634 (3rd Cir.1989). But suffice it to say we will not lightly disturb plaintiff's choice of forum and will hold defendants to establishing a strong preponderance in favor of dismissal.

The analytical framework for forum non conveniens disputes was set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The Court outlined a variety of private and public interest factors which the trial court is to weigh in exercising its discretionary authority to dismiss on forum non conveniens grounds:

Private Interests.

— Relative ease of access to sources of proof;
— Availability of compulsory process for attendance of unwilling witnesses;
— Cost of obtaining attendance of willing witnesses;
— Possibility of view of premises;
— Enforceability of judgment;
— Relative advantages and obstacles to fair trial.

Public Interests.

— Administrative difficulties from congestion when litigation is not handled at its origin;
— Imposition of jury duty on people of a community which has no relation to the litigation;
— Local interest in having localized controversies decided at home;
— Difficulties associated with application of foreign law;
— Other burdens imposed on forum.

We will analyze each of these factors in light of the affidavits and briefs submitted by the parties.

Private Interests
a.) Relative ease of access to sources of proof

The location of witnesses and documents is split between the two alternative fora, with other witnesses scattered across the United States and Canada. Defendant H & W, the maker of the allegedly defective component, is headquartered in Pennsylvania and has its manufacturing plant in this District. Consequently, many of the witnesses and documents on liability are available here. On the other hand, the pilot, the plane's owner and all witnesses and documents concerning maintenance of the plane are located in British Columbia. These witnesses and documents are central to the defense. Eyewitnesses to the crash and medical witnesses concerning plaintiff's first three months of treatment are located in the neighboring province of Alberta. Other potential witnesses, such as employees of other defendants and officials of the Canadian Aviation Safety Board (CASB) and the Federal Aviation and Aeronautics office (FAA), are located in various places inconvenient to both fora.

Plaintiff has taken steps to minimize any inconvenience to defendants in this case. Plaintiff has submitted affidavits from several potential Canadian witnesses, indicating their willingness to be deposed in Canada and to travel to Pennsylvania for trial if their expenses are paid. While such promises ameliorate to some degree the inconvenience imposed on defendants by proceeding in this forum, they have two flaws. First, the witnesses and documents remain in British Columbia for discovery, and defendants will be inconvenienced by having to prepare a defense from the opposite side of the continent. Second, there is no guarantee that these witnesses will keep their promises or fulfill them fully, and there is no recourse for defendants if they don't. (More on the latter point in the next section of this Opinion.)

On the other hand, this Court has the power to ameliorate much if not all of the inconvenience that plaintiff would experience if this case were to proceed in British Columbia. Dismissal on forum non conveniens grounds may be conditioned on defendants making all relevant witnesses and documents in their control available to plaintiff in the alternative forum for discovery and trial, at defendants' expense. Piper v. Reyno, 454 U.S. at 257, n. 25, 102 S.Ct. at 267, n. 25, 70 L.Ed.2d at 437, n. 25. With this condition, plaintiff and defendants will all have ready access in British Columbia to the principal sources of proof.

We cannot duplicate such an advantage in this forum. Because defendants are parties here and subject to our jurisdiction, we have this power. We hold no comparable sway over the non-party Canadian witnesses. Furthermore, plaintiff actually fares better under this condition than if he were permitted to proceed in this forum. The condition applies to all defendants and, if accepted, all their relevant witnesses and documents will be available in British Columbia. In contrast, only H & W has relevant witnesses and documents located in this forum, and plaintiff would have to undertake discovery of the other defendants in California, Alabama and Kansas.

Plaintiff also argues that if suit were to be filed in Canada, he would be inhibited in obtaining discovery from non-party witnesses in the United States. First of all, the primary evidence on product liability would come from defendants' witnesses and records, to be interpreted by plaintiff's expert, and all this evidence would be available to plaintiff in British Columbia under the condition described above. Secondly, we have reviewed the pertinent rules for foreign discovery, and, although the process may be time-consuming, it affords plaintiff ample opportunity to obtain relevant information. Thirdly, plaintiff always has old-fashioned informal discovery available to him, such as interviewing witnesses and obtaining statements.

Finally, plaintiff argues that discovery rules in British Columbia are restrictive and will inhibit plaintiff's access to information from the defendants. We have reviewed the pertinent rules and while they may prevent the orgiastic discovery that often occurs in our courts, we believe they provide a fair process for obtaining relevant information. Furthermore, the Canadian trial court may take into account our purpose and intent in requiring defendants to provide full access to relevant witnesses and documents in British Columbia, and may make such adjustments as are necessary to effect our purpose and intent.


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