Schneider v. Lockheed Aircraft Corp., s. 80-1844

Decision Date17 June 1981
Docket Number80-1845,80-1959,81-1200 and 81-1337,80-2119,80-1960,80-2118,Nos. 80-1844,s. 80-1844
Citation212 U.S.App.D.C. 87,658 F.2d 835
Parties, 8 Fed. R. Evid. Serv. 1049 Michael Moses SCHNEIDER also known as Nguyen Phi Khanh, a minor who sues by and through his next friends and adoptive parents, Gary and Sandra Schneider, et al. v. LOCKHEED AIRCRAFT CORPORATION, Appellant, v. UNITED STATES of America. Melissa Hope MARCHETTI also known as Ngo Thi Hoa Thuong, a minor who sues by and through her next friends and adoptive parents, Dennis and Pamela Marchetti, et al. v. LOCKHEED AIRCRAFT CORPORATION, Appellant, v. UNITED STATES of America. James Matthew ZIMMERLY also known as Do Phi Hung, a minor who sues by and through his next friends and adoptive parents, Melvin E. and Wanda Zimmerly, etc. v. LOCKHEED AIRCRAFT CORPORATION, Deft. and Third Party Pltff., and The United States of America, Third Party Deft., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

J. Vernon Patrick, Jr., with whom William M. Cohen was on the brief for Zimmerly, et al., appellees in No. 81-1200 and cross-appellants in No. 81-1337, Schneider, et al., appellees in Nos. 80-1844 and 80-2118 and cross-appellants in No. 80-1960, Marchetti, et al., appellees in Nos. 80-1845 and 80-2119 and cross-appellants in No. 80-1959. Charles R. Work, Washington, D.C., also entered an appearance for Zimmerly et al., Schneider, et al., and Marchetti, et al.

Richard M. Sharp, Washington, D.C., with whom William F. Sheehan, Nancy J. Bregstein, and Carroll E. Dubuc, Washington, D.C., were on the brief, for Lockheed Aircraft Corp., appellant in No. 80-1844 and cross-appellee in Nos. 80-1960 & 80-2118. Aidan D. Jones, Washington, D.C., also entered an appearance for Lockheed Aircraft.

Thomas S. Martin, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., William Kanter and Linda Jan S. Pack, Attys., Dept. of Justice, Washington, D.C., were on the brief, for United States of America, appellees in Nos. 80-1844, 80-1845, 80-1959 and 80-1960 and cross-appellant in No. 80-2118 and 80-2119 and appellant in No. 81-120.

Richard M. Sharp, Washington, D.C., with whom William S. Moore, William F. Sheehan, Patrick M. Hanlon and Carroll E. Dubuc, Washington, D.C., were on the brief, for Lockheed Aircraft Corp., appellant in No. 80-1845 and cross-appellee in Nos. 80-1959 & 80-2119.

William F. Sheehan, Washington, D.C., with whom Richard M. Sharp, William S. Moore, Frederick C. Schafrick, Patrick M. Hanlon and Carroll E. Dubuc, Washington D.C., were on the brief, for Lockheed Aircraft Corp., appellant in No. 81-1200 and cross-appellee in No. 81-1337. Temple L. Ratcliffe & Aidan D. Jones, Washington, D.C., also entered an appearance for Lockheed Aircraft Corp.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 76-00544, 76-0544-1, 76-00544-1, 76-0544-3 and 76-00544-3).

Before BAZELON, Senior Circuit Judge, and McGOWAN and ROBB, Circuit Judges.

Opinion for the Court PER CURIAM.

PER CURIAM:

These personal injury actions arose from the explosive decompression and subsequent crash near Saigon, South Vietnam on April 4, 1975 of a Lockheed C5A Galaxy aircraft. The plane was carrying 258 Vietnamese orphans bound for adoptive homes in the United States and abroad. One hundred forty-four of the approximately 327 persons aboard the plane died; 150 orphans survived. One year later, Friends for All Children (FFAC), the nonprofit adoption agency that had originally arranged the flight, filed suit on behalf of the 150 surviving orphans against Lockheed Aircraft Corporation. FFAC claimed that Lockheed's negligence caused the explosive decompression and crash, which in turn caused extensive neurological disorders in the surviving children. Two years later, after much diligent work on the part of the District Court, procedures were developed for the orderly disposition of some 150 related trials. The first three cases were tried by the same trial judge to the same jury. After the third case was completed, the trial judge entered a Comprehensive Pretrial Order designed to govern the remaining related trials. The court then retried the second case, having granted plaintiff's motion for a new trial in that case pursuant to Rule 59(b), Fed.R.Civ.P.

These four trials and the Comprehensive Pretrial Order are the subjects of the appeals herein. Recognizing that our disposition of these cases bears heavily upon the remaining trials, some of which are now in progress or already completed, we granted the District Court's request for expedited consideration. For the reasons set forth below, we reverse and order new trials in Schneider, Marchetti, and Zimmerly. 1

I
A. "Operation Babylift"

In early 1975, the withdrawal of United States troops from South Vietnam was completed, and the conquest of Saigon by North Vietnamese troops was imminent. The United States Government, working in cooperation with FFAC, conceived of a plan whereby a number of Vietnamese orphans in Saigon orphanages would be flown from Saigon to the United States and there adopted by American families. As the conquest of Saigon became certain, plans for "Operation Babylift" went forward, and a Lockheed-manufactured C5A aircraft (normally used to transport troops and military equipment) was procured for the mission.

On April 4, 1975, approximately 301 passengers (including over 250 Vietnamese orphans) boarded the plane for the flight to the United States. Sixteen crew persons and ten medical personnel also were on the plane. Approximately 152 of the youngest children, primarily infants, were placed in the aft troop compartment and strapped two to a seat. Approximately 106 older orphans were placed in the lower cargo compartment.

Fifteen minutes after takeoff, an altitude of approximately 23,000 feet, the aft ramp locking system of the aircraft failed, and the aft ramp, pressure door, and cargo doors fell off the aircraft, causing an immediate explosive decompression and a consequent loss of oxygen. The pilot turned back toward Saigon immediately, and crash-landed within 10 minutes. The plane first hit a rice paddy, then became airborne again for a brief period, and finally crashed into another rice paddy, skidding into a dike. At this point, the plane shattered into four large pieces and innumerable small ones. The cargo compartment was crushed and burned, killing nearly all of its occupants. The troop compartment remained intact, although it filled with smoke and fumes; 149 of its 152 orphan passengers survived. Helicopters arrived five minutes later and transported the surviving children to a hospital in Saigon. The next day, most of the orphans were flown to the United States and immediately examined at the Presidio hospital in San Francisco. They were then released to their adoptive parents.

B. Pretrial Proceedings

On April 2, 1976, FFAC filed a complaint in the United States District Court for the District of Columbia against Lockheed Aircraft Corp., representing itself as the legal guardian of 150 named Vietnamese children who had survived the plane crash. FFAC alleged that these children suffered from a syndrome of developmental problems generically classified as Minimal Brain Dysfunction (MBD), which had been proximately caused by the explosion and crash. FFAC charged Lockheed with negligence in the manufacture of the C5A, and grounded plaintiffs' right to recover in tort and breach of warranty. 2 Lockheed filed its answer on April 16, 1976, admitting that the C5A had crashed but disclaiming liability to the infants.

Lockheed then filed a Third Party Complaint against the United States, seeking to add the United States as a third-party defendant on the grounds that the United States' negligence had proximately caused the crash. In its Answer, the United States asserted that Lockheed, not the United States, had negligently caused the accident. In addition, the United States moved to dismiss, asserting that Lockheed's action was barred by 28 U.S.C. § 2680(k), which excepts claims arising in a foreign country from the scope of the Federal Tort Claims Act.

On January 6, 1978, a hearing was held on the motion to dismiss. The district court denied the motion. By later Pretrial Order, however, it granted, over Lockheed's objection, plaintiff's motion to offer as an evidentiary admission a statement made during that hearing by Lockheed's counsel (Plaintiff's Exhibit 109).

On Feb. 23, 1978, FFAC wrote to the adoptive parents of the plaintiffs, suggesting that the parents substitute themselves for FFAC as named plaintiffs in the present cases. Many of the parents had been unaware of the filing of any complaint. The United States moved to have FFAC's counsel disqualified for improper solicitation, and Lockheed moved for summary judgment on the grounds that FFAC lacked capacity to sue on behalf of the children. The trial judge appointed Charles Work, Esq., as amicus curiae to advise the court whether counsel for FFAC should be disqualified and whether a guardian ad litem should be appointed to sue on behalf of the children.

On the amicus' recommendations, the court denied Lockheed's motion for summary judgment. The court then appointed Mr. Work and his law firm to act in a more permanent capacity as guardians ad litem, thereby ameliorating any further ethical problems. At the direction of the court, the guardian informed the parents of all 150 surviving orphans of their right to substitute themselves as named plaintiffs. The parents of 98 of the children have so far exercised this right. Amended complaints were filed on behalf of Michael Schneider on Dec. 21, 1979, Melissa Marchetti on Dec. 21, 1979, and James Zimmerly on Dec. 20, 1979.

Throughout 1978 and 1979 the parties in all three cases engaged in extensive discovery. On Dec. 6, 1979, the parties entered into three stipulations. In the first, plaintiffs agreed not to...

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