Maurice A. Garbell, Inc. v. Boeing Company

• Decision Date: 01 October 1973
• Docket Number: Civ. A. No. 63-658-AAH,63-659-AAH.
• Parties: MAURICE A. GARBELL, INC., et al., Plaintiffs, v. The BOEING COMPANY, Defendant. MAURICE A. GARBELL, INC., et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, Defendant.
• Court: U.S. District Court — Central District of California

385 F. Supp. 1

MAURICE A. GARBELL, INC., et al., Plaintiffs, v. The BOEING COMPANY, Defendant.

MAURICE A. GARBELL, INC., et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, Defendant.

Civ. A. Nos. 63-658-AAH, 63-659-AAH.

United States District Court, C. D. California.

October 1, 1973.

Morris Lowenthal and George B. White, San Francisco, Cal., for plaintiffs.

Hahn, Cazier, Hoegh & Leff, Richard B. Hoegh and Russell P. Kuhn, Los Angeles, Cal., for defendants.

MEMORANDUM DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

HAUK, District Judge.

PRELIMINARY FINDINGS AND MEMORANDUM DECISION

On June 6, 1963, some two and one-half years after Dr. Garbell became convinced that the Boeing 707 and the Douglas DC-8, on each of which he had taken one flight as a passenger, must incorporate his wing design since each exhibited such excellent flying qualities, the Garbell plaintiffs filed these actions against the defendants Boeing and Douglas.

The cases were assigned to Judge Peirson Hall who, on his own motion, dismissed each with prejudice. Subsequently, on plaintiffs' application, Judge Hall permitted amended complaints to be filed. Defendants' answers asserted non-infringement of the patent, invalidity of the patent and laches.

Discovery was initiated by the Garbell plaintiffs in the form of interrogatories directed to both defendants. The defendant Boeing moved to dismiss for want of venue and this motion was denied. Thereafter both defendants noticed the deposition of Dr. Garbell, the patentee and president of plaintiff corporations. At that early stage of the cases, the Court was given an indication of the discovery problems which would later ensue when the plaintiffs moved to prevent the taking of Dr. Garbell's deposition.

In 1964, the cases were transferred to Judge Francis Whelan who had been newly appointed.

The cases had been started with plaintiffs being represented by Wallace & Parker, Charles Parker, Esq. and Ronald Rattner, Esq. of San Francisco. On the motion of plaintiffs, Wallace and Parker and Charles Parker, Esq. were substituted out and the plaintiffs' new lawyers were Morris Lowenthal, Esq. and Jerome Field, Esq. of the firm of Lowenthal & Lowenthal, and Ronald Rattner, Esq. of San Francisco.

Defendants were represented by the firm of Older, Cazier, Preston & Hoegh (now Hahn, Cazier, Hoegh & Leff) and Richard B. Hoegh, Esq. of that firm in Los Angeles. In addition to Mr. Hoegh's firm, defendant Boeing was represented by J. Paul Coie, Esq. of Seattle, Washington, and defendant Douglas was represented by Walter J. Jason, Esq. of Los Angeles.

The first affirmative action taken by the plaintiffs' new lawyers (Messrs. Lowenthal, Field and Rattner) was to move to stop further discovery on behalf of the defendants for a period of several months. In the meantime, the plaintiffs had begun document inspection at the Long Beach plant of the defendant Douglas.

These cases were transferred to Judge Irving Hill in 1965. The defendant Boeing filed a motion to transfer the action against it to Seattle, which motion was denied by the Court.

Both defendants then moved to have a Special Master appointed to supervise discovery in these actions. At that time the docket entries in the Boeing action alone filled five pages of the Court's docket book. The Court granted the motion stating:

"The Court, being duly advised in the premises, finds that an exceptional condition exists requiring that discovery be had under the supervision of a special master."

On September 27, 1965, the Order re Appointment of a Special Master was signed and Robert Henigson, Esq. of the law firm of Lawler, Felix & Hall in Los Angeles was appointed to supervise all pending and future discovery. The plaintiffs moved to vacate this Order and their motion was denied on November 22, 1965. Plaintiffs then moved for leave to file Petition for Writ of Mandamus in the Ninth Circuit asserting, among other things, the bias of Mr. Henigson. The motion was denied by the Ninth Circuit and the discovery matters were from that time presented to Mr. Henigson. The discovery matters presented to Mr. Henigson for scheduling or determination filled practically fourteen pages of the Court's docket.

On August 1, 1966, these cases were transferred to Judge A. Andrew Hauk.

In October 1966, defendant Boeing filed a motion for an early and separate trial on the issue of infringement. The Garbell plaintiffs vigorously opposed Boeing's motion.

On January 20, 1969, the cases were set for trial in May of the following year. The parties were given until November 1, 1969, in which to complete all discovery in both cases, including document inspection on the DC-9 aircraft at the Douglas Long Beach plant and document inspection at the Boeing plant in Seattle. With respect to the Boeing discovery, apart from a request by letter made to Boeing's Seattle counsel for inspection of a few limited items, the plaintiffs had not initiated any document inspection at the Boeing plant and had not taken the depositions of any wing designers at Boeing in order to assess their infringement allegations against Boeing in the five and one-half years that the case had been pending. Indeed, the document inspection ordered by the Court on January 20, 1969, was done on the Court's own motion Page 33 of the January 20, 1969 transcript.

On January 20, 1970, the parties were in Court on plaintiffs' motion to expand the reference to the Special Master to include the taking of evidence on all issues to be determined at trial. The Court expanded the order of reference to the Special Master to include the so-called geometry issues relating to the accused Boeing and Douglas aircraft and to the aircraft which defendants relied upon in support of any of their invalidity defenses.

Trial before the Special Master commenced on June 16, 1970, and lasted thirty days. The Special Master's report was filed December 31, 1970, and covers certain airfoils of the DC-8s and four prior art aircraft, the Curtiss-Wright Models 21B and 23, the Grumman F6F, and a German sailplane, the D-30 Cirrus. Other DC-8 airfoils and the remaining invalidity aircraft were to be covered in a supplemental report by the Special Master. During the hearing before the Special Master, on cross-examination, plaintiffs, through Dr. Garbell, dropped their charge of infringement as to the DC-9 aircraft wing basing their decision to do so upon evidence supplied to them long before they subjected Douglas to a complete document inspection on the DC-9.

In mid-January, 1971, the plaintiffs filed two "motions for action" relating to the DC-8 findings in the Special Master's report and to the findings on the invalidity aircraft. These motions, in effect, were motions for partial summary judgment seeking a determination that the DC-8 wings infringed, based on the Special Master's findings and that the patent was valid over the prior art aircraft. The motions were denied and, following a hearing on objections to the Special Master's report, the report was modified by interlineation and filed.

On February 1, 1971, trial was scheduled to commence on June 1, 1971. Pretrial was set for May 3, 1971, and discovery was opened up for an additional month. During the weeks before the trial, the plaintiffs filed several motions for continuance which were denied. The Special Master filed his Supplemental Report on May 5, 1971, and on May 14, 1971, plaintiffs moved to remand for further findings by the Special Master on the DC-8 airplane wings on the grounds that Douglas had supplied erroneous data to plaintiffs in 1964. The plaintiffs claimed they were surprised by their own evidence presented to the Special Master and contained in the Supplemental Report. The Court granted the motion.

On June 1, 1971, a few minutes before the trial was scheduled to commence, the plaintiffs filed a motion for recusal of the trial judge on the grounds of bias and prejudice. The moving papers were considered and the motion denied. The parties spent the remainder of the Court time on June 1st attempting to settle the actions.

On June 2, 1971, trial of the actions commenced. The validity or invalidity of the patent was to be tried first, followed by Douglas infringement issues, to be followed by Special Master hearings on Boeing wing geometry and Court trial on Boeing infringement issues.

The plaintiffs put their patent in evidence and, without availing themselves of the opportunity to present further evidence as to the invention, rested. The defendants called Dr. Garbell as their first witness under Rule 43.

On Friday, June 4, 1971, the plaintiffs filed a Petition for Writ of Mandamus seeking review of the denial of their motion for recusal of the trial judge and on June 9, 1971, the Ninth Circuit Court of Appeals stopped the trial pending determination of the Petition for Writ of Mandamus. On August 12, 1971, the Court heard the petition and denied it on the same day.

On September 20, 1971, at a status hearing, Mr. Lowenthal, who had represented the plaintiffs since 1965, stated that Mr. Jerome Field, who had been co-counsel with him, had removed himself from the case. A hearing was held on November 1, 1971, substituting Jerome Field and Ronald Rattner out of the case and granting each of the attorneys a lien on any recovery made by plaintiffs in these actions. Plaintiffs appealed from this order, which appeal is now pending in the Ninth Circuit.

On November 20, 1971, at a further hearing, Mr. Henigson was ordered to proceed with the remand requested by the plaintiffs and resumption of the trial was set for March 7, 1972.

On February 3, 1972, after obtaining a 58 day extension of time in which to file a Petition for Writ of Certiorari in the United States Supreme Court to review the Ninth Circuit's ruling on the Petition for Writ of Mandamus, the plaintiffs filed the Petition for Writ of Certiorari together with an application for a stay...