IN RE: Air Crash Disaster at Barrow, Alaska, on October 13, 1978

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I JUDIIAL PANEL ON i
i : MULTICISTRICT LITIDATION | io :	BEFORE THE JUDICIAL PANEL FHoED :
| MULTIDISTRICT LITIGATION AUG-3 1879 | / 77	1 oA
i PATRICIA LL [IDWARD
| . - JE — CLafn ofF TAC FANEL	| IN RE AIRCRAFT ACCIDENT AT } DOCKET NO. 384
i BARROW, ALASKA, CN OCTOBER 13, 1978 )i
OPINION AND ORDER
| -
BEFORE MURRAY I. GURFEIN, CHAIRMAN, AND EDWIN A. ROBSON,
| STANLEY A. WEIGEL, ANDREW A. CAFFREY, ROY W. HARPER, AND
CHARLES R. WEINER, JUDGES OF THE PANEL.
I PER CURIAM |i
I
I This litigation consists of four actions pending in
|I four districts: one action each in the District of the |	i :
!
| District of Cclumbia, the Northern District of Illinois, .
| the District of Maryland and the Southern District of Ohio. : SoOn October 13, 1978, a DeHavilland DHC-6 Twin Otter !	| .
aircraft crashed while approacning for a landing at the |
| Barrow, Alaska airfield. Only two people were aboard the || aircraft, and the pilot was the only fatality. The pilot's | |i :
| spouse, Dietra Walters (Walters), has filed each of the	f|
| four actions in this docket. |
| The District of Columbia action was brought against |United Technologies Corporaticn (United) in December, 1378. i :
| United, through its subsidiary, Pratt & Whitney Aircraft |orf Canada, Ltd., manufactured and/or assembled the engines |I . . ; |
| and the engines' component parts, including the propeller |	|
| and propeller gecverning System, on the plane that crashed. |
| Walters alleges that 1) United was negligent in the | :1 f :
i manufacturing, assembling, testing and servicing of the
i |	i :
I engines and their component parts; 2) United is strictly| |
i i
| | oo
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oo .
1 liable because the engines and/or their components were
® unreasonably dangercus or defective; and 3) United breached
3 express and implied warranties on the engines and/or their
4 component parts. |
The Maryland action was brought in March, 1979, against |> the DeHavilland Aircraft Company of Canada, Ltd. (DeHavilland),
6 manufacturer of the plane that crashed. Walters seeks
7 to hold DeHavilland responsible for alleged defects in
8 | the plane and/or its component parts under theories of
9 | negligence, strict liability and breach of express and
10 implied warranties.
11 The Illinois action was brought in May, 1979, against
| Woodward Governor Corporation (Woodward), manufacturer
12 of the propeller governing system used to govern the propellers
_ on the engines of the plane that crashed. Walters posits
14 theories of negligence, strict liability, and breach of
15 | express and implied warranties in seeking to hold Woodward
16 liable for alleged defects in the propeller governing system.
17 The Ohio action was brought in March, 1979, against
18 | United, DeHavilland, Wcodward and Hartzell Industries,
19 Inc. (Hartzell). Hartzell, through its division, Hartzell
Propeller Company, manufactured the propellers on the engines |
20 | of the plane that crashed. Walters seeks to hold Hartzell
21 | responsible for alleged defects in the propellers under
22 | theories of negligence, strict liability and breach of
23 | express and implied warranties. The claims against each
@ of the other three defendants are identical to the claims
- | brought against each defendant in the other acticn in this
| docket to which that defendant is a party. FPI—MAR—3-27.78.54.178)

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1 | Walters moves the Panel to centralize, pursuant to
® | 28 U.S.C. §1407, all actions in this docket in the District
3 | of the District of Columbia for coordinated or consolidated
4 pretrial proceedings. DeHavilland supports the motion. |
Woodward agrees that Section 1407 proceedings are appropriate |> in this docket, but Woodward favors selection of the Southern
6 District of Ohio as the transferee forum. United and Hartzell
7 oppose transfer.
8 We find that these actions involve common questions
9 of fact and that transfer of the actions pending in districts
10 other than the District of the District of Columbia to
11 that district for coordinated or consolidated pretrial
proceedings under Section 1407 with the action pending
+2 there will best serve the convenience of the parties and
® witnesses and promote the just and efficient conduct of
14 the litigation.
15 United and Hartzell deny that common questions of
16 fact predominate in this docket. They submit that in the
17 | Illinois action, the primary factual questions will relate
18 | to whether Woodward negligently manufactured the propeller
19 governor; in the District of Columbia action, the primary
factual questions will relate to whether United negligently
20 | manufactured the engines; and in the Maryland action, the21 | primary factual questions will relate to whether DeHavilland
22 negligently manufactured the aircraft. These three actions,
23 United and Hartzell thus argue, present significant and
C | controlling individual factual questions on the issue of
\e | liability. Hartzell also stresses that one plaintiff has |
i |
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1 filed all the actions. Since no discovery against any |C defendant could be conducted by any plaintiff other than
3 | Walters, Hartzell argues that any discovery proceecaings
4 | contemplated would be conducted for the first and only
| time by Walters and that there would thus be no possibility |
> | of duplicative discovery. Under these circumstances, Hartzell |
6 | urges, Walters has not shown that any need for transfer
7 under Section 1407 exists.
8 United also urges that the District of Columbia action
9 is already far advanced and would not benefit from inclusion |
10 | in Section 1407 proceedings. |
11 | Finally, United contends that Walters has filed her
| Section 1407 motion for centralized pretrial proceedings
12 because of her inability to effect service of process over
® all defendants in any one federal forum. United contends
14 that Walters' motive for seeking transfer amounts to an
15 attempted misuse of the statute and should not be countenanced
16 by the Panel.
17 We find these arguments unpersuasive. All four actions
18 arise from the same accident and factual questions concerning |
19 the cause or causes of the accident will be common to each
| action. The presence of different legal theories in some
20 of the actions with regard to the alleged liability of
21 | each defendant does not negate the existence of common
22 questions	of fact regarding the cause or causes of the
23 i crash and the attendant circumstances. See In re Air Crash
) | Disaster in the Ionian Sea on September 8, 1974, 438 F.
55 Supp. 932, 934 (J.P.M.L. 1977). Because the factual questions
|
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1 | in each action focus on what caused the accident, it is
C likely that United, DeHavilland, Hartzell and Woodward
3 will be involved with discovery in each action either as |
4 parties or non-parties. Transfer under Section 1407 is |
| thus necessary in order to avoid duplicative discovery
> conducted by Walters and others, prevent inconsistent pretrial
6 rulings, conserve judicial resources and ensure the cooperation
7 of all parties and counsel.
8 Since the District of Columbia action is already pending
9 in the district we have selected as the transferee forum
10 for this litigation, we believe that any future question |11 of whether that action should be included in the coordinated
or consolidated pretrial proceedings, and if so to what
+ extent, is properly left to the discretion of the transferee
® judge. See In re Airport Car Rental Antitrust Litigation,
14 | 448 F.Supp. 273, 275 (J.P.M.L. 1978). We note that the
15 transferee judge has the authcrity to invoke procedures |
16 whereby discovery already completed in the District of
17 | Columbia action can be made applicable to the other actions.
18 | See id.; Manual for Complex Litigation, Parts I and II,	§§3.11 (rev. ed. 1977).
19
United's argument that Walters' motion for transfer
20 | under Section 1407 constitutes an abuse of the statute21 is without merit. In essence, United's argument is that
22 Walters should not be able to secure from the Panel, under
23 | 28 U.S.C. §1407, what the venue provisions of federal law
® | otherwise prohibit. The Panel's discretion under Section
25 | 1407 is not limited by venue considerations, however, and	| FPI—MAR=—3.27.79.68-1781

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— |
1 | the fact that defendants may not all be amenable to suit |
® in the same jurisdiction does not prevent transfer to a
3 single Ji1sTrict ior oratrial proceedings where the prerequisites
4 | of Section 1407 are otherwise satisfied. See In re Kauffman
| Mutual Fund Litigation, 337 F.Supp. 1337, 1339 (J.P.M.L.5 |
1972).
6 Woodward argues that the Southern District of Ohio
7 should be selected as transferee forum because that district
8 is the only district in which all four defendants have
9 been named and where trial against all four defendants
10 will proceed.
11 On balance, we find that the District of the District
of Columbia is the preferable transferee forum. Neither
12 Woodward nor DeHavilland has responded in the Southern
® District of Ohio action. Consequently, the question of
14 whether trial will proceed in one district against all
15 four defendants remains unresolved. In any event, a number
16 | of factors render the District of the District of Columbia
17 | an appropriate transferee forum for this litigation. The
18 | discovery schedule in the District of Columbia action is
most advanced. See In re Falstaff Brewing Corporation
+o Antitrust Litigation, 434 F.Supp. 1225, 1231 (J.P.M.L.
20 1977). Moreover, the familiarity which the Honorable Aubrey
21 E. Robinson, Jr. has developed with this litigation as
22 a result	of the pretrial proceedings that have already
23 been conducted in the action before him in the District )
9 of the District of Columbia weighs significantly in favor
x of that district as the transferee forum. See In re
Griseofulvin Antitrust Litigation, 395 F. Supp. 1402, 1402
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TA
1 | (J.P.M.L. 1975). Finally, the location in the District
® | of Columbia of records maintained by the Federal Aviation |3 | Administration pertaining to the evaluation of the plane,
4 | its engines and propellers prior to the issuance of theairworthiness certificate, and records pertaining to the
° investigation of the crash conducted by the National
6 Transportation Safety Board, also commends selection of
7 the District of the District of Columbia as the transferee
8 forum. See In re Air Crash Disaster near Saigon, South
9 Vietnam, on April 4, 1975, 404 F. Supp. 478, 480 (J.P.M.L.
10 1975).
11 IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
§1407, the actions listed on the following Schedule A and
L2 pending in districts other than the District of the District
® | of Columbia be, and the same hereby are, transferred to	14 the District of the District of Columbia and, with the
15 consent of that court, assigned to the Honcrable Aubrey
16 E. Robinson, Jr., for coordinated or consolidated pretrial
17 proceedings with the action pending in that district and
18 | listed on Schedule A.
19 |
20
21
22 :
23 |
* |	25 ||
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1 | |DOCKET NO. 389 —-- IN RE AIR CRASH DISASTER AT BARROW, ALASKA, |
@® | ON OCTOBER 135, 1907/8
3 SCHEDULE A
4 |
DISTRICT OF THE DISTRICT OF COLUMBIA |5 !
Dietra Leigh Walters, etc. v. Civil Action
6 United Technologies Corp. No. 78-2375
7 NORTHERN DISTRICT OF ILLINOIS
Dietra Walters, etc. v. Civil Action
8 Woodward Governor Co. No. 79C-1774
9 DISTRICT OF MARYLAND
10 Dietra Leigh Walters, etc. v. Civil Action	The DeHavilland Aircraft Co. No. H-79-506
of Canada, Ltd.
11
SOUTHERN DISTRICT OF OHIO
12
Dietra Leigh Walters, etc. v. Civil Action
® The DeHavilland Aircraft Co. No. C-3-79-134%	of Canada, Ltd., et al.
14
15
16
17
18 |
19
20
21
22 :
23
25 |
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