IN RE: Air Crash Disaster Near Silver Plume, Colorado, on October 2, 1970

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BEFORE THE JUDICIAL PANEL Crm A. IE
ON : EEE
MULTIDISTRICT LITIGATION DEC -5 1377 AFUE I
GA Array ° - EE ST :IN RE AIR CRASH DISASTER NEAR ) Lon DF TR FEL
SILVER PLUME, COLORADO, ON ) DOCKET NO. 112
OCTOBER 2, 1970 )
OPINION AND ORDER
BEFORE ALFRED P. MURRAH *, CHAIRMAN, AND JOHN MINOR WISDOM, Co
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, co Co
JOSEPH S. LORD, III, AND STANLEY A, WEIGEL, JUDGES OF :
THE PANEL Unil |
PER CURIAM i E oo Co
On October 2, 1970, a chartered aircraft transporting E oo so
the Wichita State University football team and associated personnel -
crashed in the Rocky Mountains near Silver Plume, Colorado. Co Lo
Of the forty persons aboard, thirty-two succumbed to injuries Co co
received in the crash. The Panel ordered the parties to actions : .
pending in federal court to show cause why this litigation should oo Co
not be transferred to a single district for coordinated or consoli-
dated pretrial proceedings. The parties responding to the order Co a
to show cause do not oppose transfer. We find that the actions
involve substantial common questions of fact, and, to insure
that duplication of discovery is avoided and inconvenience ~
to the parties and witnesses minimized, we order the actions Co :
listed on the attached Schedule A and pending in districts oo -
* Judge Alfred P. Murrah took no part in the consideration
or decision of this matter.

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,
® other than the District of Kansas transferred to that district
for pretrial proceedings with the actions pending there.
Wichita State University in Wichita, Kansas, had
an agreement with Golden Eagle Aviation, Inc. of Oklahoma City,
Oklahoma, concerning transportation of the Wichita State football
team to its game in Logan, Utah. Golden Eagle provided the
necessary flight crew and services for the ill-fated flight.
The aircraft that crashed was owned by the Jack Richards Aircraft
Company of Oklahoma City.
Actions have been filed in three different federal
district courts and in Kansas and Oklahoma state courts alleging
that Jack Richards and Golden Eagle negligently failed to comply
with regulations applicable to the flight. The federal court
® actions also allege that the United States, through its agent,
the Federal Aviation Administration, was negligent in permitting
Golden Eagle to operate without proper licenses. In addition,
the Kansas and Oklahoma state court actions charge Wichita State
University with negligence in failing to see that proper federal
aviation regulations had been complied with.
The necessity for transfer of these actions to a single
district having been established, the choice of the appropriate
transferee forum is the only question at issue. The majority of
state court actions are pending in Kansas and most of the plaintiffs
and prospective plaintiffs in this litigation are domiciliaries
of Kansas. In addition, the key witnesses to the issues in this
® litigation are either located in or within easy commuting distance

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® of the federal court in Wichita, Kansas. Transfer of all
federal actions to the District of Kansas, therefore, provides
a unique opportunity for the federal and Kansas state court
parties to coordinate their discovery efforts. Such state-
federal accommodation in discovery will significantly lessen
the burdens on both courts' judicial resources and greatly
enhance the expeditious processing of all actions arising out of
the crash.
IT IS THEREFORE ORDERED that all actions on the
attached Schedule A be, and the same hereby are, transferred,
pursuant to 28 U.S.C. §1407, to the District of Kansas and
assigned to the Honorable Frank G. Theis for coordinated or
consolidated pretrial proceedings with the actions pending
® in that district.
®

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SCHEDULE A DOCKET NO. 112
® DISTRICT OF KANSAS
Marvin G. Brown, Sr. v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W-4749
Howard L. Johnson v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W~4750
Robert B. Krueger v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W-4751
Milton B. Moore, Sr. v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W-4752
Thomas B. Owen, Sr. v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W-4753
Mary P. Stines v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W~4754
Jack R. Vetter, Sr. v. Jack Richards Civil Action
Aircraft Co., Inc., et al. No. W-4755
or SOUTHERN DISTRICT OF OHIO
® Hallie Eugenia Robinson, etc. v. ~.. . Civil ActionUnited States of America No. 4265
WESTERN DISTRICT OF OKLAHOMA
Leo Loy Roberts, etc. wv. Civ.-72-332
The United States of America
Rick Stevens, et al. v. Civ.~72-233
The United States of America

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® BEFORE THE JUDICIAL PANEL . a GREENE
MULTIDISTRIOT LITIGATION | B |
® IN RE AIR CRASH DISASTER NEAR ) ’ Jaga i273
SILVER PLUME, COLORADO, ON ) FN
OCTOBER 2, 1970 ) DOCKET NO. 112° TEE
Mike Bruce, et al. v. Fairchild Indus- )
tries, W.D. Okla., Civ.73-140 )
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
The above-captioned action arose out of the crash
of a charter aircraft in the fall of 1970. We initially trans-
® ferred all actions in this litigation to the District of Kansas
® and, with the consent of that court, assigned them to Judge
Frank G. Theis for coordinated or consolidated pretrial pro-
ceedings. In re Silver Plume, Colorado, Air Disaster Litigation,
352 F.Supp. 968 (J.P.M.L. 1972). Pursuant to Rule 12 of the
Rules of Procedure of the Judicial Panel on Multidistrict Liti-
gation, 53 F.R.D. 119, amended 55 F.R.D. LI, the Clerk of the
Panel issued an order conditionally transferring this action
to the District of Kansas under 28 U.S.C. §1407. Defendant
Fairchild Industries opposes transfer	and now moves the Panel
to vacate the conditional transfer order. We find that the
criteria for transfer of this action under Section 1407 have
not been satisfied and, accordingly, defendant's motion is
® granted.
9 |

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6 a -
® In their search for a solvent defendant, plaintiffs
commenced twenty actions against Fairchild Industries in Okla-
hom state court alleging breach of warranty. After completion
of lengthy discovery, however, plaintiffs dismissed each of
the state court actions immediately pricr to the hearings on
Fairchild's motions for summary judgment. Plaintiffs then
combined and filed the above-captioned action in Oklahoma
federal court.
Plaintiffs argue that their action shares questions
of fact commun to the previously transferred actions and, there-
fore, can be most expeditiously processed if it is also trans-
ferred to the District of Kansas pursuant to Section 1407.
® Fairchild Industries accuses plaintiffs of employing
C dilatory tactics in order to avoid a final determination of
the merits of the action. It stresses that all of the pretrial
discovery pertinent to this action was ccmpleted in the Oklahoma
state court and it has requested the federal court to adopt all
prior state court orders and discovery. Fairchild contends that
the action is again ripe for summary judgment and that transfer
would not promote the just and efficient conduct of the action
but would cnly denv Fairchild a prompt disposition of the claims
asserted against it.
Plaintiffs' theory of liability in this action is
based upon an alleged breach of warranty, whereas plaintiffs
[ in the actions in Kansas allege liability based upon the cert-
~ ification and operation of the aircraft. Thus, the Oklahoma
®

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. S35 3 . . oo B
action raises only limited questions of fact common to the Co ge oo
Kansas litigation. In addition, discovery in the Oklahoma action EEE
is far advanced and it appears that that action can be disposed of LET
with a minimal expenditure of judicial energy. Indeed, plaintiffs
seem determined to use Section 1407 as a means of further delay- i i | |
ing a final resolution of their claims against Fairchild. rs ar SR
Nothing in the record before us, however, convinces us that Ba mn
transfer of the above-captioned action will serve the convenience SE ERE
of the parties and witnesses or promote the just and efficient
conduct of this litigation. o
IT IS THEREFORE ORDERED that the January 19, 1973 Le co
conditional transfer order entered in the above-captioned action 8 ~ Co : .
be, and the same hereby is, VACATED; and transfer of that action oo oo
under Section 1407 be, and the same hereby is, DENIED. B } 5