IN RE: Multidistrict Personal Injury Litigation Arising From the Mid-Air Collision Near Fairland, Indiana, on September 9, 1969

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JUDICIAL PANEL ON
. MULTIDISTRICT LITIGATION Le B SI | -
aE TE FILED =
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THE JUDICIAL PANEL PATRICIA ©: 77
MULTIDISTRICT LITIGATION
MULTIDISTRICT PERSONAL INJURY LITIGATION )
ARISING FROM THE MID-AIR COLLISION NEAR ) DOCKET NO. 30
FAIRLAND, INDIANA ON SEPTEMBER 9, 1969 ) Loe IE
OPINION AND ORDER |
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, -
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH
S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL }
PER CURIAM oT
On September 9, 1969 an Allegheny Airlines DC-9 enroute ’
from Cincinnati, Ohio to Indianapolis, Indiana collided with :
a Piper Cherokee and crashed near Shelbyville, Indiana. The
78 passengers and the four crew members of the DC-9 were killed. }
The pilot of the small aircraft was killed also. The actions
on Schedule A are death actions to recover damages resulting :
from the deaths of persons killed in this disaster.l/ Following : a.
notice to all parties, a hearing was held on motions of one Co Ce
of the defendants and several of the plaintiffs to consider
transfer of these actions to a single district for coordinated
or consolidated pretrial proceedings under 28 U.S.C. Section 1407. : i
All parties represented at the hearing favor transfer
of these actions to a single district under 28 U.S.C. Section 1407
1/ We were advised by counsel at the hearing that several
additional actions have been filed recently. These actions and
any others filed hereafter will be treated as tag along cases under
Rule 12 of the Rules of Procedure of the Judicial Panel on
Multidistrict Litigation.

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but they do not agree on the choice of the transferee court.
We agree with counsel for the Ohio plaintiffs2/who point
out in their brief:
The questions of fact and law applicable to
liability will be virtually identical in all
of these actions and, thus, this clearly is
a situation in which consolidation for pre-
trial proceeding is appropriate pursuant to
28 U.S.C. Section 1407. The only real ques-
tion is where proceedings should be consoli-
dated.
Defendants Allegheny Airlines and the United States
favor transfer of all actions to the Southern District of
Indiana as do plaintiffs in actions pending in the Southern
District of Indiana, the District of Connecticut and the
3/
® Eastern District of New York.— The plaintiffs in actions
: pending in the Southern District of Ohio, ‘the Southern District
of West Virginia and the Eastern District of Tennessee favor
transfer of all actions to the Southern District of Ohio.
With at least 38 actions pending in seven districts there
can be little doubt that this is multidistriet litigation
within the meaning of Section 1407. The facts relating to
the cause of the collision are common to all of these actions.
2] Those parties favoring transfer of all actions to the
Southern District of Ohio. This group includes the plaintiffs
in actions pending in the Southern District of Ohio and in the
Eastern District of Tennessee.
3/ Counsel for these plaintiffs also purport to represent the
plaintiff in an action commenced in the Eastern District of
Kentucky but the Clerk of the Panel has no record of such an
® action and it was not included in the hearing order.

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In re Cincinnati Air Disaster (TWA), 298 F. Supp. 353 (JPML 1968).
The parties agree that the transfer of these actions to a
single district for coordinated or consolidated pretrial
proceedings will serve the convenience of parties and
witnesses and will promote the just and efficient conduct of
these actions. The statutory criteria for transfers under
Section 1407 are clearly met.
Counsel for the parties favoring transfer to the Southern
District of Ohio rely on the fact that there are more actions
now pending in that district than in any other single
4/
district.— While the number of actions pending in a potential
transferee district is relevant to the selection of the most
® appropriate district, it is certainly not controlling
especially where, as here, the actions are nearly equally
divided between two districts.
Factors favoring the selection of the Southern District
of Indiana include: (1) numerous eye-witnesses to the collision
reside in that district, (2) much of the potentially relevant
material evidence is located in Indianapolis’ and (3) the
owner of the Piper Cherokee is an Indiana corporation with
its principal office in Indianapolis. Perhaps most important
4] It seems unlikely that many more actions will be commenced
in the Southern District of Ohio while the filing of a substantial
number of new actions in the Southern District of Indiana can
be reasonably expected.
5/ Some documentary evidence is also located in Pittsburg,
Pennsylvania and Washington, D. C. but none is located in the
[ Cincinnati area.

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| is the fact that the crash occurred in the Southern District :
of Indiana.
We have consistently held that the district encompassing
the situs of the crash is generally the most appropriate
transferee district for litigation of this type. In re |
Hendersonville, North Carolina Air Disaster Litigation,
297 F. Supp. 1939 (JPML 1969); In re Ardmore, Oklahoma
Air Disaster Litigation, 295 F. Supp. 45 (JPML 1968);
In re Cincinnati Air Disaster Litigation (TWA), supra;
In re Cincinnati Air Disaster Litigation (American Airlines),
295 F. Supp. 51 (JPML 1968). There are no unusual circumstances
present in this litigation which support a departure from
® this precedent.
IT IS THEREFORE ORDERED that the actions listed on the
attached Schedule A pending in other districts be and the
same are hereby transferred to the Southern District of
Indiana pursuant to 28 U.S.C. Section 1407 and with the
consent of that court these actions are assigned to the
Honorable Cale J. Holder for coordinated or consolidated
pretrial proceedings.
6/ Thetransfer	of these actions under Section 1407 does not
prevent the appropriate court from considering the possibility
of transferring these actions for trial under 28 U.S.C. Section
o 1404 (a) when pretrial proceedings are complete. In re Grain	Shipment Litigation, 300 F. Supp. 1402, 1404 (JPML 1969); In
re Hendersonville, North Carolina Air Disaster Litigation, supra.

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SECHEDULE A .
EASTERN DISTRICT OF NEW YORK
Mozelle A. Freeman v. Allegheny Airlines, Civil Action No.
Ine. v. United States of America 69-C-1319
SOUTHERN DISTRICT OF INDIANA
Jill Mary Kohr v. Allegheny Airlines, Civil Action No.
Ine. IP 69-C-431
Nelda Cobb Fox v. Allegheny Airlines, Civil Action No.
Ine., et al. IP 69-C-459
Bette C. Marshall v. Allegheny Airlines, Civil Action No.
Ine. IP 69-C-476
Morris Groverman, Jr. v. Allegheny Civil Action No.
Airlines, Inc. IP 69-C-479
® Elisabeth Alexander v. Allegheny Airlines, Civil Action No.
. Ine., et al. IP 69-C-497
Juanita E. Quante v. Allegheny Airlines, Civil Action No.
Ine. IP 69-C-523
Lorraine D. Carey v. Allegheny Airlines, Civil Action No.
Ine. IP 69-C-544
Merchants National Bank & Trust Company Civil Action No.
of Indianapolis, ete. v. Allegheny IP 69-C-587
Airlines, Inc.
Edwin B. Fockler, III, ete. v. Allegheny Civil Action No.
Airlines, Ine., et al. IP 69-C-588
Edwin B. Fockler, III, ete. v. Allegheny Civil Action No.
Airlines, Ine., et al. IP 69-C-589
Barbara Dianne Morgan, ete. v. Allegheny Civil Action No.
Airlines, Ine., et al. IP 69-C-590
Judith Fahy Christy, etc. v. Allegheny Civil Action No.
Airlines, Inec., et al. IP 69-C-541
® SOUTHERN DISTRICT OF OHIO
The First National Bank of Cincinnati v. Civil Action No.
Allegheny Airlines, Inc. 7296

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The First National Bank of Cincinnati Civil Action No. i
v. Allegheny Airlines, Inc. 7297
The First National BAnk of Cincinnati Civil Action No.
v. Allegheny Airlines, Inc. 7298
Barbara C. Fields v. Allegheny Airlines, Civil Action No.
Ine. 7301
Shirley C. Rose v. Allegheny Airlines, Civil Action No.
Ine. 7308
Lois Ann Hubbell v. Allegheny Airlines, Civil Action No.
Ine. 7332
Joan Lee Reekers v. Allegheny Airlines, Civil Action No.
Ine. 7336
Garnet M. Brown v. Allegheny Airlines, Civil Action No.
Ine. 7343
The First National Bank of Cincinnati Civil Action No.
v. Allegheny Airlines 7344
C Talmage L. Brannon, ete. v. Allegheny Civil Action No.Airlines, Inc. 7341
Talmage L. Brannon, etc. v. Allegheny Civil Action No.
Airlines, Inc. 7342
Melba Schaeff Wientjes, etc. Vv. Civil Action No.
Allegheny Airlines, Inc. 7355
Harold S. Holford, ete. v. Allegheny Civil Action No.
Airlines, Inc. 7354
Mary Ann Bozwell, ete. v. Allegheny Civil Action No.
Airlines, Inc. 7373
Joseph M. DeCourcy v. Allegheny Airlines, Civil Action No.
Ine. 7265
SOUTHERN DISTRICT OF WEST VIRGINIA
Barbara Hardebeck v. Allegheny Airlines, Civil Action No.
Ine. 69-221
NORTHERN DISTRICT OF ILLINOIS
( Fannabell S. Fixman v. Allegheny Airlines, Civil Action No.	Inc. 69 C 2182
Sondra Bays, etc. v. Allegheny Airlines, Civil Action No.
Ine. 69 C 2388

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Elizabeth A. Flynn, ete. v. Allegheny Civil Action No.
Airlines, Inc., et al. 69 C 2428
Leila Diane Kulinski, ete. v. Allegheny Civil Action No.
Airlines, Inc., et al. 69 C 2678
Nancy F. Siebert, ete. v. Allegheny Civil Action No.
Airlines, Inc. 69 C 2620
Nancy Murray Dryer, etc. v. Allegheny Civil Action No.
Airlines, Inc., et al. 70 C 95
EASTERN DISTRICT OF TENNESSEE
Ione F. Roseberry v. Allegheny Airlines, Civil Action No.
Ine. 6821
DISTRICT OF CONNECTICUT
Margaret Sullivan, ete. v. Allegheny Civil Action No.
Airlines, Inc. 13635
® Margaret Sullivan, etc. v. Allegheny Civil Action No.
Airlines, Inc. 13636