IN RE: Aviation Products Liability Litigation

Case MDL No. 104 Document 2 Filed 05/12/15 Page 1 of 16
BEFORE THE JUDICIAL PANEL = SERRE
| : MULTIDISTRICT LITIGATION SEP25 191 Lal -
IN RE AVIATION PRODUCTS ) :
LIABILITY LITIGATION ) DOCKET NO. 104
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM*, CA N CoEDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH La SE
S. LORD, III*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL RE . oo
PER CURIAM |
The cases comprising this products liability litiga- BE N E
tion can be segregated into two broad categories. One Se : i Lo
category consists of actions by corporate plaintiffs assert- Co Ee
ing claims for damages allegedly caused by defects in the Bh oo
design, manufacture and installation of a gas turbine heli- |
copter engine produced by the Allison Division of General
Motors Corporation. The other category consists of actions : TL
asserting claims for personal injuries sustained whena |
helicopter powered by the same type engine crashed because -
of an alleged in-flight engine failure. C
Plaintiffs in twelve actions pending in seven different - Co :
districts moved the Panel to transfer these cases (herein-
after referred to as the Schedule A cases) to a single district oC
* Although Judges Wisdom and Lord were not present at Co .
the hearing, they have, with the consent of all parties, ’ :
participated in this decision. CL

Case MDL No. 104 Document 2 Filed 05/12/15 Page 2 of 16
. _o-
CC) for coordinated or consolidated pretrial proceedings. The Panelissued an order to show cause why eight apparently related cases
(hereinafter referred to as the Schedule B cases) should not also
be considered for transfer pursuant to 28 U.S.C. §1407. On the
basis of the papers filed and the hearing held, we find that all
of the Schedule A cases and some of the Schedule B cases will
clearly benefit from transfer to a single district for coordinated
or consolidated pretrial proceedings.
I. Schedule A Cases
A. Background
Plaintiffs in the Schedule A cases are represented by
the same lead counsel. Each plaintiff is a corporate owner or
operator of a commercial helicopter powered by a gas turbine
<P engine designed and manufactured by the Detroit Diesel AllisonDivision of General Motors Corporation (hereinafter Allison).
Each action concerns the design, manufacture and installation of
the helicopter engine, known as the Allison 250-Cl18. Allegations
concerning the design and manufacture of the helicopter frame are
common to some of the cases, as are charges of improper per-
formance of overhaul, modification and repair corvice.”
I/Textron, Inc. (a division of Bell Helicopter Company)
and Fairchild-Hiller Corporation designed and manufactured the
helicopters involved in these actions. Aviation Power Supply
(Western United States), The Southwest Airmotive Company (Central
United States)and Airwork Corporation (Eastern United States)
are the authorized distributors of the Allison 250-Cl8 engine and
component parts and are the authorized overhaul and repair facil-
od ities for the engines. |

Case MDL No. 104 Document2 Filed 05/12/15 Page	3 of 16
. ae
( The claims for damages in each of the cases are similar:
(1) damages to helicopters and to plaintiff's business as a
result of crashes or emergency landings caused by premature
failures and malfunctions of the helicopter's engine during
flight; (2) damages to plaintiff's business as a result of down
time required to make engine modifications and repairs specified
by the Federal Aviation Agency and Allison.
B. Arguments of the Parties
Movants urge that | the existence of common questions
of fact makes transfer to a s ngle district for coordinated or
consolidated pretrial proceedings necessary in order to promote
the just and efficient conduct of the litigation and to avoid
duplicitous discovery and unnecessary inconvenience to the
9 parties and witnesses. Movants contend that the issue of fact
central to each lawsuit is the airworthiness of the Allison 250-
Cl8 engine, including its design, development, manufacture and
installation. It is asserted that although the specific de-
fects alleged in each separate case may not be identical they
are all interwoven so as to cover the engine's general condition
and airworthiness. It is also asserted that discovery common
to all cases will concern the extent to which Allison controlled
and directed the installation | of the engine by the helicopter
manufacturers and each incident of engine overhaul, modification
and repair performed by its authorized distributors.
Allison agrees that comsolidation of the Schedule A cases
Dd for coordinated pretrial proceedings is necessary, but urges

Case MDL No. 104 Document2 Filed 05/12/15 Page	4 of 16
® v	that transfer of the Lametti action be denied because discovery
is near completion. Allison also points out that transfer of
the Freeman action” is unnecessary because that case settled
shortly after trial began.
All other defendants oppose transfer of any of the cases
in which they are named. Although these defendants generally
admit that certain common issues of fact are alleged, they
argue that these issues are outnumbered by separate and dis-
tinct factual issues peculiar to each case. They assert that
since the helicopters were operated in different environments
under varying atmospheric conditions, both of which affect the
performance of the aircraft and the engine, a substantial amount
of local discovery concerning each mishap is necessary and will
9 not be common.
These defendants contend that transfer will restrict
their efforts to complete local discovery and will require them
to participate in discovery not useful to them. They also
contend that an important factor weighing against the desira-
bility of transfer under Section 1407 is the lack of a single
district with jurisdiction over all defendants, which precludes
any real possibility of a common trial on liability.
2/ Lametti & Sons, Inc. v. Textron, Inc., et al., District
of Minnesota, Civil Action No. 4-70 Civ. 457
3/ F. Kemper Freeman, et al. v. Textron, Inc., et al.,
Western District of Washington, Civil Action No. 9215
@ 4/ Textron, Inc. (a division of Bell Helicopter Company),Fairchild-Hiller Corporation, Aviation Power Supply and Airwork
Corporation.

Case MDL No. 104 Document2 Filed 05/12/15 Page	5 of 16
. Cs
<P C. The Question of Transfer
It is clear from the legislative history of Section
1407 that multiaistrict products liability litigation was
envisioned as susceptible to effective treatment under Section
1407.7 There is no dispute that two of the three statutory
requirements to transfer exist in this litigation: these are
civil actions involving one or more common questions of fact
which are pending in more than one district. The opposition to
transfer, however, strongly urges that the issues of fact are
not so common that the convenience of the parties and witnesses
and the just and efficient conduct of the litigation will be
promoted by transfer under Section 1407. We do not agree.
Each action against Allison will require discovery
LL) concerning the design, manufacture and installation of the
Allison 250-C18 engine. Even though different component parts
are involved in different cases, discovery common to all cases
will concern engineers responsible for the overall design and
development of the engine. And plaintiffs may also be interested
in deposing the company officials who relied on those engineers.
Furthermore, if it is true, as plaintiffs assert, that Allison
controlled the installation of the engines by the airframe
manufacturers and dictated the specifications regarding overhaul,
modification and repair to the authorized distributors, dis-
covery on these issues Will likely be common.
rr) 5/	H.R. REP. NO. 1130, 90th Cong., 2d Sess. 3 (1968)

Case MDL No. 104 Document 2 Filed 05/12/15 Page 6 of 16
-6-
We are convinced that transfer of the Schedule A cases
to a single district for coordinated or consolidated pretrial
proceedings is necessary. For the convenience of the parties
and witnesses it is highly desirable that witnesses relevant
to the common issues be deposed but once. And only through a
coordinated pretrial discovery program,tailored to fit the
discovery needs of each party and supervised by a single
judge, can overlapping and duplicitous discovery be avoided
6/
and the just and efficient conduct of the litigation assured.
The Manual for Complex and Multidistrict Litigation
specifically resolves defendants' concern that transfer will
involve them in unwanted discovery:
® [E]xpenses of counsel in attending depositions	on oral interrogatories can be avoided by entry
of an order providing an opportunity for a
delayed examination by parties who cannot afford
to attend all depositions or believe the deposi-
tion will not affect their interests....
Under this order a party with limited means or
who in good faith believes the deposition is of
no interest to himmay without risk, decide not
to be represented by counsel at the deposition
in question. He may read a copy of the trans-
script of the initial examination and then decide
whether he wishes to request a delayed examina-
tion on the ground that his interests were
inadequately protected at the initial examina-
tion. Manual Part I, §2.31 (1970)
6/ Cf. In re Plumbing Fixtures Litigation where the short-
line aefendants and the full-line defendants were given different
discovery schedules.

Case MDL No. 104 Document 2 Filed 05/12/15 Page 7 of 16
. i.
<9 Furthermore, defendants’ argument regarding the unavaila-
bility of a single district with jurisdiction over all parties
is misdirected.” Transfer of civil actions pursuant to 28
U.S.C. §1407 is for pretrial purposes only and the fact that
all parties are not amenable to suit in a particular district
does not prevent transfer to that district for pretrial
proceedings where the prerequisites of Section 1407 are other-
wise satisfied. In re Kauffman Mutual Fund Actions, 337 F.
Supp. 1337, 1339 (J.P.M.L. 1972). Succinctly, venue is not a
criterion in deciding the propriety of transfer under Section
1407. In re hotel Telephone Charges Antitrust Litigation __
F. Supp. __ (J.P.M.L. Mar. 30, 1972).
D. Choice of Transferee Forum
9 The Southern District of Indiana is the most appro-
priate transferee forum. Allison is the one party involved in
all of the transferred cases and the majority of the common dis-
covery will focus on it. Its plant and offices are located in
Indianapolis and all its documents and necessary witnesses are
there. Also, the transferred cases are fairly well-scattered
throughout the country and Indianapolis provides a convenient
geographical center for the litigation.
7/ Defendants' argument is better aimed at the appropriate-
ness of a particular transferee forum. See In re Yarn Pro-
cessing Patent Valitity Litigation, FF. Supp. ___
ad 1J.P.M.L. 1972)

Case MDL No. 104 Document2 Filed 05/12/15 Page	8 of 16
Co -8-
L Judge Morell E. Sharp of the Western District ofWashington has conducted a complete discovery program in the
now-settled Freeman action. His familiarity with the issues
and discovery involved in this litigation will enable him to
expedite the consolidated pretrial proceedings. Pursuant to
28 U.S.C. §292(c), Judge Sharp has been designated to sit as a
district judge in the Southern District of Indiana and this
litigation will be assigned to him for pretrial proceedings.
IT. Schedule B Cases
B. Cases Transferred
With respect to each action included in the Panel's
show cause order, we have examined the complaint, read the
briefs filed and heard oral argument. On the basis of our
9 reasoning concerning the Schedule A cases, we conclude that,for the convenience of all parties and witnesses and the just
and efficient conduct of the litigation, the following Schedule
B cases should be transferred to the Southern District of Indiana
for coordinated or consolidated pretrial proceedings.
1. Arizona Helicopters, Inc. v. General Motors Corp., et al.,
District of Arizona, Civil Action No. Civ=-70-323-PHX
The allegations of plaintiff's complaint closely parallel
those made by plaintiffs in the Schedule A cases. Plaintiff,
owner of a helicopter powered by an Allison 250-Cl8 engine,
alleges that as a result of engine failures it suffered damage
to the aircraft, a loss of revenue due to inability to use the
aircraft and additional pecuniary losses. It is alleged that
od these in-flight failures were a result of defects in the design,material, construction or workmanship (or some combination
thereof) regarding the engine and its component parts.

Case MDL No. 104 Document2 Filed 05/12/15 Page	9 of 16
Lo.
9 All parties to this action oppose transfer. They claim
that discovery is substantially complete, except for a few
depositions scheduled to be taken in Indianapolis. Although
the case had been scheduled for trial on July 11, 1972, we are
advised by counsel that the trial date has been continued for
approximately six months. In light of this development and to
avoid the possibility of duplicitous discovery and unnecessary
inconvenience to the Indianapolis witnesses, we think it best
to order this case transferred to the Southern District of
Indiana for the completion of pretrial discovery. Certainly
if this is the only remaining discovery needed, Judge Sharp
can devise a program to accommodate these parties and the
action may be considered for remand to the District of Arizona.
9 2. Sabine Offshore Services, Inc. v. General Motors Corp.Eastern District of Texas, Civil Action No. 7647
Plaintiff claims that it is entitled to recover damages
for two separate helicopter crashes caused by in-flight engine
failures. Both the plaintiff and defendant oppose transfer
on the ground that this action does not present questions of
fact common to the other cases. We do not agree. Plaintiff
alleges that the helicopter's engine, an Allison 250-Cl8, was
defective either in "workmanship, design or material at the
time the helicopter's engine manufactured by defendant was
delivered to plaintiff." Thus, as far as plaintiff's discovery
is concerned, there definitely are areas in which questions
od of fact exist common to the transferred cases. We believe

Case MDL No. 104 Document 2 Filed 05/12/15 Page 10 of 16
-10~-
<9 that both parties will benefit from participation in the con-
solidated pretrial proceedings before Judge Sharp. Once the
common discovery is completed, ofcourse, the action may be
considered for remand to the Eastern District of Texas.
3. Marvel Ranger, et al. v. General Motors Corp., et al.,
District of Arizona, Civil Action No. Civ-72-42-PCT
This action, originally filed in state court and subsequently
removed to federal court, consists of two claims. The first is
a wrongful death claim brought by the personal representative of
the estate of a pilot fatally injured in a helicopter crash;
the second claim is brought by the corporate owner of two heli-
copters that were involved in several crashes, one of which
resulted in the fatality complained of in the first claim.
9 A comparison of the second claim with the complaint filed
in Elling Halvorsen, Inc., et al. v. Textron, Inc., et al.,
District of Arizona, Civil Action No. Civ-~-71-58 PHX {a Schedule
A case), reveals that similar allegations are made in that action
involving the same parties and concerning the same helicopters and
mishaps. Furthermore, counsel representing the corporate plain-
tiffs in the second claim also serve as lead counsel for the
Schedule A plaintiffs. It is therefore clear that the second
claim of the Marvel Ranger action should be consolidated with the
other cases for the coordinated pretrial proceedings in the
Southern District of Indiana and it is so ordered.
Although plaintiffs in the first claim have no objection
0 to transfer of the second claim for coordinated or consolidatedpretrial proceedings, they argue that their claim does not

Case MDL No. 104 Document 2 Filed 05/12/15 Page 11 of 16
| -11-
9 present questions of fact sufficiently common to the other
actions to warrant transfer at this time. We agree. Section
§1407 (a) authorizes the Panel to "separate any claim" from the
transferred action and to remand that claim to the transferor
district. See, e.g., In re Hotel Telephone Charge Antitrust
Litigation, supra; In re Penn Central Securities Litigation,
325 F. Supp. 309 (J.P.M.L. 12971). We therefore remand the
first claim of the Marvel Ranger action to the District of
Arizona, but without prejudice to later application for trans-
fer should the parties find that discovery will duplicate
discovery in the transferee district.
B. Cases Not Transferred
9 We have considered each of the remaining Schedule Bcases on its own merits and have concluded that none of them
present sufficient common questions of fact to warrant transfer
to the Southern District of Indiana at this time.
1. Richard W. Black v. Fairchild Industries, Inc., et al.,
District of New Jersey, Civil Action No. 63-72 and
John W. Thumann, et al. v. Fairchild Industries, Inc.,
et al., District of Maryland, Civil Action No. 72-433M
Both cases are personal injury actions arising out of
the crash of a helicopter enroute from Baltimore Friendship
Airport to Washington National Airport. Although plaintiffs
allege that the crash resulted from a failure of the heli-
copter's engine, an Allison 250-C18, the complaints do not
set forth any specific engine defect and we cannot conclude
oD that discovery will involve issues of fact common to the

Case MDL No. 104 Document2 Filed 05/12/15 Page 12 of 16
-12~-
9 transferred cases. Transfer is therefore denied without
prejudice to later application if it is found during the
course of pretrial that discovery will duplicate discovery
in the transferee forum.
2. Mrs. Doyle R. Avant, Jr., et al.	v. Fairchild-Hiller
Corp., et al., Southern District of Texas, Civil Action
No. 70-V-1 and
Barbara G. Hall, et al. v. Fairchild-Hiller Corp., et al.,
Southern District of Texas, Civil Action No. 70-V-2
These cases are wrongful death actions arising from the
crash of a helicopter near Goliad, Texas. Transfer is
opposed on the ground that discovery is complete and that
trial is set for August 14, 1972. It is asserted that any
discovery that remains does not involve questions of fact
9 common to the transferred litigation. Transfer of these
actions is therefore denied without prejudice to the right
of a party to seek reconsideration at a later time.
3. Petroleum Helicopters, Inc. V. The Southwest Airmotive
Co., et al., Western District of Louisiana, Civil Action
No. 16224
Plaintiff asserts claims for damages allegedly caused by
defendant's negligence in servicing plaintiff's helicopter.
Discovery only involves the maintenance and service performed
by the defendant and the circumstances surrounding the forced
landings. Since it appears that no questions of fact exist
conmon to the transferred cases, transfer is denied, but without
prejudice to later application if the narties deem it necessary
0 to expand their discovery to encompass the discovery in theconsolidated actions.

Case MDL No. 104 Document 2 Filed 05/12/15 Page 13 of 16
- 13 -
L IT IS THEREFORE ORDERED that the actions listed on the
attached revised Schedule A be, and the same hereby are,
transferred pursuant to 28 U.S.C. §1407 to the Southern
District of Indiana and, with the consent of that court,
assigned to the Honorable Morell E. Sharp, sitting by
designation, for coordinated or consolidated pretrial pro-
ceedings.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.
§1407, the action Marvel Ranger, et al. v. General Motors
Corp., et al., D.Arizona, Civil Action No. 72-42-Pct-WEC,
be, and the same hereby is, transferred to the Southern
District of Indiana for coordinated or consolidated pretrial
proceedings and that the First Claim of that action be, and
9 the same hereby is, separated and remanded to the District
of Arizona for further proceedings.
IT IS FURTHER ORDERED that transfer of the actions
listed on the attached revised Schedule B be, and the same
hereby is, denied without prejudice to later application of
the parties involved.
od |

Case MDL No. 104 Document 2 Filed 05/12/15 Page 14 of 16
oP SCHEDULE A DOCKET NO. 104	DISTRICT OF MINNESOTA
Lametti & Sons, Inc. v. Textron, Inc., Civil Action
et al. No. 4-70 Civ. 457
Marine Iron & Ship Building Co., et al. Civil Action
v. Textron, Inc., et al. No. 4-71 Civ. 390
DISTRICT OF OREGON
Okanagan Helicopters, Lts., v. Fairchild Civil Action
Hiller Corp., et al. No. 71-208
Okanagan Helicopters, Ltd., v. Textron, Civil Action
Inc., et al. No. 71-209
EASTERN DISTRICT OF PENNSYLVANIA
Asplundh Aviation, Inc. v. Fairchild Hiller Civil Action
Corp., et al. No. 71-249
Asplundh Aviation, Inc. v. Textron, Inc. Civil Action
et al. No. 71-250
Copter, Inc. v. Textron, Inc., et al. Civil Action
No. 71-483
DISTRICT OF NEW JERSEY
Myron S. Lehman, etc. v. Textron, Inc., Civil Action
et al. No. 1117-71
DISTRICT OF ARIZONA
Elling Halvorson, Inc., et al. v. Textron, Civil Action
Inc., et al. No. 71-58-~Phx-CAM
Elling Halvorson, Inc., et al. v. Textron, Civil Ac¢tion
Inc., et al. No. 71-449-Phx-CAM
Arizona Helicopters, Inc. v. General Civil Action
Motors Corp., et al. No. 70-323-Phx-WEC
Marvel Ranger, et al. v. General Motors Civil Action
Corp., et al. No. 72-42-Pct-WEC
DISTRICT OF IDAHO
Inter-Mountain Helicopter, Inc. v. Fairchild Civil Action
) Hiller Corp., et al No. 1 70 103

Case MDL No. 104 Document 2 Filed 05/12/15 Page 15 of 16
0 SCHEDULE A DOCKET NO. 104EASTERN DISTRICT OF TEXAS
Sabine Offshore Services, Inc. Vv. Civil Action
General Motors Corp. No. 7647

Case MDL No. 104 Document 2 Filed 05/12/15 Page 16 of 16
) SCHEDULE B DOCKET NO. 104
DISTRICT OF NEW JERSEY
Richard W. Black, v. Fairchild Civil Action
Industries, Inc., et al. No. 63-72
DISTRICT OF MARYLAND
John W. Thumann, et al. v. Fairchild Civil Action
Industries, Inc., et al. No. 72-433-M
SOUTHERN DISTRICT OF TEXAS
Barbara G. Hall, et al. v. Fairchild Civil Action
Hiller Corp., et al. No. %0-V-2
Mrs. Doyle R. Avant, Jr., et al. v. Civil Action
Fairchild Hiller Corp., et al. No. 70-V-1
WESTERN DISTRICT OF LOUISIANA
Petroleum Helicopters, Inc. v. The Civil Action
Southwest Airmotive Co., et al. No. 16224