IN RE: Air Disaster at Denver, Colorado, on November 16, 1976

Case MDL No. 410 Document 2 Filed 05/20/15 Page 1 of 7
JUDICIAL Barr | Lo REE	yerGL PANEL GN se
ROTRSTRIET Uligargy1 Figg RICLh > CT
| ‘hol2 R13 gp TF
3 BEFORE THE JUDICIAL PANEL PATRICIAD, 15,0 CL oooN CLERK OF ThE py	4 MULTIDISTRICT LITIGATION =
IN RE AIR DISASTER AT DENVER, ) DOCKET NO. 410
5 COLORADO, ON NOVEMBER 16, 1976 )
6 OPINION AND ORDER eo
7 .BEFORE ANDREW A. CAFFREY, ACTING CHAIRMAN, AND ROY W. HARPER, Lo ] :3 CHARLES R. WEINER, EDWARD §S. NORTHROP, AND ROBERT H. SCHNACKE, -JUDGES OF THE PANEL. }
) PER CURIAM
) This litigation consists of three actions pending Co CL IN
in three districts: one each in the Eastern District of ; oo i.
New York, the Central District of California and the District
of Colorado. i
On November 16, 1976, a DC-9 jet aircraft manufactured
by McDonnell Douglas Corporation (MDC) and owned and operated : :
by Texas International Airlines, Inc. (TXI) crashed at
the end of a runway at Stapleton International Airport,
Denver, Colorado, during takeoff. On board at the time : : :
of the accident were 81 passengers and five crew members. TE .
Movants represent that the passengers and crew evacuated oo
the aircraft, that some passengers claim they were injured
in the air crash, and that the aircraft was destroyed in oo
the accident. Co LT
FPI=MAR——3.27.79.6M.1781

Case MDL No. 410 Document 2 Filed 05/20/15 Page 2 of 7« .
2 The action pending in the Eastern District of New oo
3 York was filed in 1978 by a passenger allegedly injured
a in the air crash, and by his wife. The complaint originally
5 named as defendants TXI and Jet Capital Corporation (Jet
Capital), a holding company that owns approximately one-third . IE i
® of TXI's stock. Plaintiffs in this action allege that - oo
7 the passenger's injuries resulted from TXI's negligent SET
8 maintenance, operation and control of the aircraft. The |
9 bassenger's wife seeks damages for loss of consortium.
10 TXI filed a third-party complaint against MDC and Safe SE
11 Flight Instrument Corporation (Safe Flight), the manufacturer Co
12 of several components in the aircraft. TXI seeks indemnity
and contribution from both third-party defendants, alleging
13 that the injuries suffered by plaintiffs were caused by
14 MDC's and Safe Flight's negligent design and manufacture |
15 of the aircraft and its components, and by MDC's and Safe
16 Flight's failure to remedy certain defects in the DC-9
17 or to warn users of the DC-9 about those defects. Movants | .
18 represent that after TXI's third-party complaint was filed, Co
19 plaintiffs in the New York action moved to amend their :
20 complaint to add MDC and Safe Flight as defendants, making
the same allegations as are made by TXI in its third-party Ce
21 complaint. TXI and Jet Capital have consented to the granting Be oo
22 of the motion to amend, but an order to that effect has . N
23 not yet been entered. Discovery thus far has included 5
24 requests for production of documents, and interrogatory .
25 requests and answers. No depositions have been taken. |FPI-MAR—3.27.79.6M.1781

. - Case MDL No. 410 Document2 Filed 05/20/15 Page	3 of 7
-3-
[ 1
2 The second personal injury action pending in this
3 litigation was filed very recently in the District of Colorado.
4 Plaintiff in that action seeks to recover damages from
5 TXI based upon substantially similar theories of recovery
6 as are alleged by plaintiffs in the New York action. In
addition, TXI has filed a third-party complaint against
7 MDC and Safe Flight that is substantially similar to the
8 one filed by TXI against those same defendants in New York.
9 No discovery has yet occurred in this action.
10 In addition to the two pending personal injury actions,
11 an action filed in October, 1979, is pending in the Central
12 District of California in which Orion Insurance Company
® 13 Limited (Orion), the liability and hull insurer of TXI,
seeks to recover from MDC and Safe Flight, as TXI's subrogee,
1 all amounts paid by Orion to TXI for the value of the aircraft
15 or paid in settlement of personal injury and/or property
16 damage claims against TXI resulting from the accident.
17 Orion alleges that MDC and Safe Flight negligently designed,
18 manufactured, tested, inspected and assembled the aircraft
19 and its components, and that these defendants negligently
20 failed to remedy dangers and defects in the aircraft and
01 to warn users of these hazards.
TXI, Jet Capital and Orion move the Panel to centralize,
22 pursuant to 28 U.S.C. §1407, all actions in this docket
23 in the Central District of California for coordinated or
@ 24 consolidated pretrial proceedings. MDC supports the motion.
25
FPI—MAR—3-27.79.6M-1781

Case MDL No. 410 Document 2 Filed 05/20/15 Page 4 of 7 : .
. —4=
1
Plaintiffs in the New York and Colorado actions and Safe
2 Flight oppose the motion. If the Panel determines, however,
3 that Section 1407 proceedings are appropriate in this docket,
4 Safe Flight favors selection of the Central District of
5 California as the transferee forum and the Colorado plaintiff
6 favors selection of the District of Colorado as the transferee
7 forum.
8 We find that these actions involve common questions
of fact and that transfer of the actions pending in districts
i ‘other than the Central District of California to that district
10 for coordinated or consolidated pretrial proceedings under
11 Section 1407 with the action pending there will best serve
12 the convenience of the parties and witnesses and promote
13 the just and efficient conduct of the litigation.
14 Opponents argue that centralization of the actions |
15 should be denied because this litigation involves only
three actions. Plaintiffs in the New York and California
He actions further assert that individual questions of fact
17 predominate. In addition, the New York plaintiffs contend
18 that transfer would be inconvenient to the parties and
19 witnesses and that voluntary cooperation among involved
20 parties, counsel and courts would avoid any duplicative
21 discovery and is a preferable alternative to centralization.
29 We find these arguments unpersuasive. Movants maintain,
03 and no party to the actions presently before us has denied,
that these actions involve complex common questions of
24 fact and extensive discovery concerning what caused the
25
FPI-MAR—3.27.79.6M-1761

- - Case MDL No. 410 Document2 Filed 05/20/15 Page	5 of 7
’ —5-
) 1
2 activation of the stall warning system when the aircraft
3 was beginning its takeoff; issues concerning the alleged
| 4 defects or negligence in the design and manufacture of
the stall warning system; whether TXI was negligent in
° the maintenance of the aircraft; and whether TXI's crew
6 acted reasonably in deciding to abort the takeoff. Transfer
7 under Section 1407 is thus necessary in order to avoid duplicative
8 discovery, prevent inconsistent pretrial rulings and conserve
9 judicial resources. While voluntary coordination of discovery
10 efforts among parties and their counsel is always commendable,
11 transfer of these actions to a single district under Section
1407 will ensure the streamlining of discovery and all
9 +2 other pretrial proceedings as well. See In re Gas Meter
13 Antitrust Litigation, 464 F. Supp. 391, 393 (J.P.M.L. 1979).
14 The transferee judge, of course, has the authority to schedule
15 any pretrial proceedings that are unique to particular
16 parties, claims or actions to proceed concurrently with
17 the common pretrial proceedings, thereby permitting the
18 litigation to proceed expeditiously in all areas. See
19 In re Multi-Piece Rim Products Liability Litigation, 464
F. Supp. 969, 974 (J.P.M.L. 1979). Moreover, the transferee
20 judge has power to provide that no party need participate
21 in pretrial proceedings unrelated to that party's interests.
22 See, e.g., Parts I & II, §§2.31, Manual for Complex Litigation
23 (rev. ed. 1977). And under the provisions of Fed. R. Civ.
@ 24 P. 26(c)(2) and 45(d)(2), depositions of parties and witnesses
55 may occur in proximity to where they reside. See In re
FPI~MAR—3-27-79-6M-1781

Case MDL No. 410 Document2 Filed 05/20/15 Page	6 of 7 » 2
—-6-—
1 Y2 Air Crash Disaster near Chicago, Illinois, on May 25, 1979,
3 F.Supp. ____, __ (J.P.M.L., filed August 13, 1979)
a (slip opinion at 4).
The Colorado plaintiff favors the District of Colorado
° as the transferee forum for this litigation on the grounds
© that the accident occurred there and that defendants do
7 business there. We are persuaded, however, that the Central
8 District of California is the preferable transferee forum.
° Because the DC-9 aircraft was designed and built at MDC's
10 facility in Long Beach, California, many of the witnesses
11 and relevant documents are located there. In addition,
12 no responding party has contested movants' assertion in
their papers before the Panel that the present actions ¢
13 "will have almost no witnesses on liability involved in
14 pre-trial discovery, and no significant document evidence
15 located in the Denver area."
16 IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C.
17 §1407, the actions listed on the following Schedule A and
18 pending in districts other than the Central District of
19 California be, and the same hereby are, transferred to
the Central District of California and, with the consent
20 of that court, assigned to the Honorable Robert J. Kelleher
21 for coordinated or consolidated pretrial proceedings with
22 the action pending in that district and listed on Schedule A.
23
24 ®
25

- LS Case MDL No. 410 Document 2 Filed 05/20/15 Page 7 of 7
1
® SCHEDULE A
3
4
DOCKET NO. 410 -- IN RE AIR DISASTER AT DENVER, COLORADO,
5 ON NOVEMER 16, 1976
6 CENTRAL DISTRICT OF CALIFORNIA
7 The Orion Insurance Co., Ltd. wv. Civil Action
McDonnell Douglas Corp., et al. No. CV-79-04138
8
9 DISTRICT OF COLORADO
Aatos V. Kosti v. Texas Civil Action
10 International Airlines, Inc. © No. 79-1657
11
EASTERN DISTRICT OF NEW YORK
12
Hansgeorg G. Corinth, et al. Civil Action
® 13 v. Jet Capital Corp., et al. No. 78C-1876
14
15
16
17
18 :
19
20
21
22
23
®25
FPI—MAR—3-27-79-6M-1781