IN RE: Air Crash Disaster Near Upperville, Virginia, on December 1, 1974

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yy gs e MDL No.1 Docume 194] Pa .
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A 7, i a JUDICIAL PARELVii of / ~~ AL Ti CIAL PARE :N27 BEFORE THE JUDICIAL PANE MULTIEISTRICT LITIGATION7 on HlLEDMULTIDLSTRICT LITIGATIONFRESE ie APR	29 1975
IN RE AIR CRASH DISASTER NEAR UPPERVILLE, ) ATA DHT
VIRGINIA, ON DECEMBER 1, 1974 1 DOCKEE [NG RIOD
OPINION	AND ORDER y—
- BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM *,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER,
JOSEPH S. LORD, ITI, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM | |
A Boeing 727 aircraft, being operated as Trans World
Airlines Flight 514, crashed into a mountainside on December 1,
1974, as it was descending for its approach to Dulles International
@ Airport near Washington, D.C. All 92 persons aboard the plane
died as a result of the crash. At the present time, nineteen
actions arising from this disaster are pending in four different
districts: fifteen in the Eastern District of virginia, two .
in the Northern District of California, one in the Northern Y
District of Illinois and one in the Southern District of New York. To
Plaintiffs in one of the Virginia actions move the Panel
for an order transferring all actions to the Eastern District
of Virginia for coordinated ox consolidated pretrial proceedings,
: — |
Although Judge Wisdom was unable to attend the Panel hearing,he has, with the consent of all parties, participated
in this decision.
1/ Several actions had originally been instituted in the
C southern District of Indiana, the residence of many of	the deceased passengers. Those actions, however, have been
voluntarily dismissed by the respective plaintiffs andreinstituted in the Eastern District of Virginia.

Case MDL No. 199 Document 2 Filed 05/01/15 Page 2 of 12
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while	the plaintiff in one of the California actions moves for
transfer of all actions to the Central or Northern District of
California. All responding parties pgree on the desirability
of transfer under Section 1407 and favor the Eastern District
of Virginia as the transferee forum. These actions clearly
involve common questions of fact and we find that their transfer
© to the Eastern District of Virginia for coordinated or consoli-
dated pretrial proceedings pursuant to 28 U.S.C. §1407 will best
‘serve the convenience of parties and witnesses and promote
the just and efficient conduct of the litigation. | |
As is often the case in multidistrict	air disaster
C litigation, the only issue in dispute among the parties is the
: location of the appropriate transferee forum. See, e.g., In re
Air Crash Disaster at Florida Everglades om December 29, 1972,
360 F. Supp. 1394 (J.P.M.L. 1973). Proponent of a California .
forum suggests that transfer there is preferable because both
TWA and Boeing have major facilities in that state. These facts
standing alone, however, do not provide the necessary predicate
for transfer of all actions to California. Instead, the crucial
indicia regarding the most suitable transferee court for this
litigation point to the Eastern District of Virginia. |
The Panel has generally assigned air disaster litigation
to the district in which the crash occurred. See, e.9., In re
Delta Airlines Crash at Boston, Massachusetts, on July 31, 1973,
® 373 F. Supp. 1406 {T.P.M.L. 1974) In re Air Crash Disaster at
PloridaEverglades	on December. 29,\1972, supra; In re Air Crash
Disaster at Huntington, West Virginia, on November 14, 1970,

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® 342 F. Supp. 1400 (F.P.M.L. 19721. This policy is grounded on
the helief that discovery proceedings on the common issue of
liability can ordinarily be OSL effectively and expeditiously
supervised in that district. In the instant litigation, we adhere
| to this principle and point out that the following likely subjects
of discovery are located in the Eastern District of Virginia:
the air traffic controllers who were responsible for the flight, :
the ground witnesses to the crash and significant documentary
eyidence, such as the tape recordings of the conversations between
the controllers and the £1ight crew. In addition, the overwhelming
majority of the actions are already pending there.
_ IT IS THEREFORE ORDERED that the actions listed on
® the following Schedule A and pending in districts other than
the Eastern District of Virginia be, and the same hereby are,
transferred to the Eastern District of Virginia and, with the
consent of that court, assigned to the Honorable Albert V. Bryan,
Jr. for coordinated or consolidated pretrial proceedings with
the actions pending in that district and listed	on Schedule A.

Case MDL No. 199 Document 2 . Filed 05/01/15 Page 4 of 12
. SCHEDULE A " DOCKET NO. 199
() NORTHERN DISTRICT OF ILLINOIS
American National Bank & Trust Co. Civil Action
: v. Trans World Airlines, Inc. No. 75-0065.
SOUTHERN DISTRICT OF NEW YORK
Essie R. English, Adm. v. The Boeing Civil Action
Co., et al. No. 74 Civ. 5601
| NORTHERN DISTRICT OF CALIFORNIA
. James E. Brown, Jr.,v. Trans World Civil Action
Airlines, Inc., et al. No. C75-0166-RFP
John A. Buchanan, et al. v. Trans World Civil Action
Airlines, Inc. No. C74-2578
EASTERN DISTRICT OF VIRGINIA :
Carl E. 2Zwisler, III and Union State Bank, Civil Action
etc. v. Trans World Airlines, Inc. No. 804-74-A
Bank of Clarke County, Va. Adm. of the |
Estate of David Frank Holdhusen v. Trans Civil Action
[ World Airlines, Inc., et al. No. 86-75A
Bank of Clarke County, V. Adm. Estate of.
Susan Applewhite v. Trans World Airlines, Civil Action
Inc., et al. No. 87-75A
Bank of Clarke County, Va. Adm. Estate of
William Dale Vaughn v. Trans World Civil Action
. Airlines, Inc., et al. No. 90-75A :
Bank of Clarke County, Va. Adm. of the iE
Estate of Ella Fort v. Trans World Civil Action
Airlines, et al. No. 91-75A
Bank of Clarke County, Va. Adm. Estate
of Michael Stokes v. Trans World Civil Action
Airlines, Inc. No. 92-75A
Bank of Clarke County, Va. Adm. Estate
of James R. Applewhite v. Trans World Civil Action
Airlines, Inc., et al. No. 93~75A
Bank of Clarke County, Va. Adm. Estate
of Mathew Hartley v. Trans World Civil Action
® Airlines, Inc., et al. No. 96-75A

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Bank of Clarke County, Va. Adm. Estate
of Benjamin Applewhite v. Trans World . Civil Action
Airlines, et al. No. 97-75A
Lee M. Dismore, Adm. Estate Scott
Michael Dismore v. Trans World Civil Action
Airlines, Inc., et al. No. 88~75A
William E. Dismore, Adm. Estate Wendy :
Kathleen Dismore v. Trans World © Civil Action
Airlines,Inc., et al. No. 95-75A
William E. Dismore, Sr., Exec. Estate ’
of William E. Dismore, Jr. and
.Lee M. Dismore, Adm. Vv. Trans World : Civil Action
Airlines, Inc., et al. : No. 89-75A
National Bank of Fairfax, Va. | :
Adm. Estate of Janice Dismore Civil Action
v. Trans World Airlines, et al. No. 94-75A :
Harold L. Cramer, etc. v. Trans World Civil Action
® Airlines, Inc. : No. 83-75AJack J. Basil, Jr., etc. v. Trans World Civil Action |
Airlines,	et al. oo No. 56«~75A

a Case MDL No. 199 Document 2 Filed 05/01/15 Page 6 of 12
ECE sp NTE ory
: MITER
BEFORE THE JUDICIAL PANEL Tal I
ON N
Mr
MULTIDISTRICT LITIGATION HES] gery
PAT ..
IN RE AIR CRASH DISASTER NEAR UPPERVILLE, ) TOGKET! NO. 199
VIRGINIA ON DECEMBER 1, 1974 I TE RATES Sa 3
) :
James	I. Van Fossen, et al. v. United States ) 3/3/77of America, N.D. California, Civil Action ) , :
No. C76-1483-CBR : : ) EE
)
Marlene J. Brock, et al. v. United States )
of America, C.D. California, Civil Action )
No. CV76-2488-RMT )
)
Donna M. Kresheck, etc. v. United States )
of America, C.D. California, Civil Action )
No. CV76-2489-1IH )
Ellen Harlan, Adm. v. Trans World Airlines, )
et al., S.D. Indiana, Civil Action No. )
)
Jamie Deichmann Hasenkampf, etc. v. Trans )
World Airlines, Inc., et al., E.D. Louisiana, )
Civil Action No. 75-3665 i ) : Sn
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, 5
EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III,
STANLEY A. WEIGEL,* AND ANDREW A. CAFFREY, JUDGES OF THE
PANEL.
PER CURIAM
The Panel previously transferred several actions in
this litigation to the Eastern District of Virginia and,
with the consent of that court, assigned them to the Honorable
Albert V. Bryan, Jr. for coordinated or consolidated pretrial
* /Judge Weigel was unable to attend the Panel hearing on
Hasenkampf and, therefore, took no part in the consideration
or decision of that matter.

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proceedings pursuant to 28 U.S.C. §1407. See In re Air
Crash Disaster Near Upperville, Virginia on December 1, 1974,
393 F. Supp. 1089 (J.P.M.L. 1975). These actions arose from
an air crash disaster that occurred when a Boeing 727 air-
craft, being operated by Trans World Airlines (TWA), crashed
as it was approaching Dulles International Airport near
Washington, D. C. All 87 passengers and seven crew members
died as a result of the crash.
In the transferee district, defendant TWA adopted a
policy of not contesting liability for compensatory damages
in the actions brought because of passenger deaths, after
Judge Bryan had ruled that the Virginia Wrongful Death Act Co
applied to these actions and that punitive damages are not
recoverable under this statute. Also, TWA and the United Lo
States agreed that the United States would pay a certain :
percentage of any verdict or settlement in the passenger :
actions in the transferee district. All these passenger
actions have now been settled or tried, and only certain
third-party complaints against the United States are still
pending before Judge Bryan. The only action in the trans- E |
feree district arising from a crew member's death has also
been settled. On September 13, 1976, Judge Bryan issued
an order containing the following findings:

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and Hasenkampf, but has taken no position regarding transfer ®
of Brock and Kresheck. The United States favors transfer in
Brock and Kresheck and has expressed no position concerning
transfer of Hasenkampf and Harlan.
Although we recognize that these actions may share some
questions of fact with the previously transferred actions,
we find that their transfer under Section 1407 would not
necessarily serve the convenience of the parties and witnesses
or promote the just and efficient conduet of the litigation.
Accordingly we vacate the conditional transfer order and the
orders to show cause.
All plaintiffs argue that transfer of these actions is
inappropriate because the considerable pretrial proceedings con- @
cerning the issue of liability have been concluded in the
transferee district. Plaintiffs in Harlan, Brock and Kresheck
state that their counsel have been actively involved in the
Section 1407 pretrial proceedings and that they have access
to all discovery obtained in the transferee district. Plain-
tiff in Hasenkampf also states that she intends to utilize
much of the discovery previously obtained in the actions in
the transferee district.
Defendants favor transfer of these actions to the |
Eastern District of Virginia because the actions arise
out of the same occurrence as that in the litigation before
| ®

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Judge Bryan. Judge Bryan's familiarity with the subject
matter would thus be invaluable, defendants argue. TWA, a
defendant in only Hasenkampf and Harlan, argues that it has
agreed not to contest the issue of liability in the trans-
feree forum because of considerations of judicial economy
and convenience of the parties. If all the actions arising
out of this air disaster could be tried in Virginia by
one set of counsel before one judge who was familiar with
the common questions of fact and law, this defendant contends.
both the judiciary and the parties will benefit. If the
Panel decides not to transfer Harlan and Hasenkampf to the
Eastern District of Virginia, however, TWA states, TWA will
® “contest liability and full discovery will have to be taken
on that issue.
We recognize that these four actions and the other
actions in this litigation may involve some common questions
of fact. On the basis of the record before us, however, it
is clear that all pretrial proceedings concerning the common
issue of liability have been concluded in the transferee dis-
| trict. Indeed, all actions before Judge Bryan already have
either been tried or settled, and only certain third-party
complaints against the United States are still pending in
the Eastern District of Virginia. It also appears that all
parties in the actions now before the Panel already have
® =»

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access to all discovery obtained in the transferee dis-
erict. Moreover, if the Panel were to transfer Harlan
and Hasenkampf to the Eastern District of Virginia, there
apparently would be no further discovery on the liability
issue because TWA has adopted a policy of not contesting
liability in the passenger actions	in that district. Thus,
the only issue remaining in the Harlan and Hasenkampf would
be one of damages, which is unique to each action. See
In re Air Crash Disaster at Pago Pago, American Somoca, on
January 30, 1974, 394 F. Supp. 799 (J.P.M.L. 1975). Transfer
of Brock and Kresheck to the Eastern District of Virginia is
likewise inappropriate. We note that only one other crew
member action has been filed in or transferred to the Eastern [
District of Virginia, and that that action has been cettiea.”
And although the two crew member actions now before the Panel
themselves might involve some minimal common questions of fact,
these two actions are already pending in the same district.
In any event, counsel for the United States admitted during
the hearing on this matter that what little discovery remains
in each of these actions will be largely unique to each
action. Transcript at 9-12. In light of these circumstances,
none of the criteria for Section 1407 transfer set forth in the
Panel's earlier decision in this litigation still applies.
2/0fcourse,	the judge to whom each of these actions is -
assigned can take appropriate steps to ensure that all the
heretofore completed discovery in the transferee district is
made available to all parties. See In re Seeburg-Commonwealth @United Merger Litigation, 415 F. Supp. 393, 396 (J.P.M.L. 1976).
3/Thres other crow meshes actions that were recently filed indistricts other than the Eastern District of Virginia have alsobeen settled.

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® IT IS THEREFORE ORDERED that the order to show cause
regarding the action entitled James I. van Fossen, et al.
Vv. United States of America, N.D. california, Civil Action
No. C76-1483-CBR be, and the same hereby is, vacated as moot.
IT IS FURTHER ORDERED that the conditional transfer order
regarding the action entitled James Deichmann Hasenkampf, etc.
v. Trans World Airlines, Inc., et al., E.D. Louisiana, Civil
Action No. 75-3665 be, and the same hereby is, vacated. |
IT IS FURTHER ORDERED that the orders to show cause re-
garding the actions entitled Ellen Harlan, Adm. v. Trans World |
Airlines, Inc., et al., E.D. Louisiana, Civil Action No. 75-3665;
Marlene J. Brock, et al. v. United States of America, C.D.
® California, Civil Action No. CV76-2488-RMT; Donna M. Kresheck,
etc. v. United States of America, C.D. California, Civil Action
No. CV76-2489-IH be, and the same hereby are, vacated.
C

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C) It appearing to this Court that the Plaintiffs’Discovery Committee has diligently and competently com-
pleted its assigned task and purpose of conducting
discovery and preparing this litigation for a trial on
liability, which was made unnecessary by the settlement
and agreement on this issue between Trans World Airlines
and the United States, and it is now appropriate to
provide for the award of fees to the Plaintiffs’ Dis-
covery Committee and Liaison Counsel and to reimburse
them for costs and charges incurred....In re Air Crash
Disaster Near Upperville, Virginia on December 1, 1974,
MDL Docket No. 199 (E.D. Va., filed September 13, 1976)
(emphasis added).
Since the Hasenkampf action appeared to share common
questions of fact with the actions previously transferred
to the Eastern District of Virginia, the Panel issued an
order conditionally transferring this action for inclusion
in the Section 1407 proceedings pending there. Subsequently,
1
the Panel issued orders to show cause why the Van Fossen,
® Brock, Kresheck and Harlan actions should not also be trans-
ferred to the Eastern District of Virginia pursuant to Section
1407. Hasenkampf and Harlan, like nearly all other actions
previously transferred to or filed in the Eastern District of
virginia, involve the death of passengers, Both the United
States and TWA are defendants in these two actions. Brock and
Kresheck, however, are brought because of crew members deaths,
and only the United States is named as a defendant in each of
these actions.
Plaintiffs in Hasenkampf, Harlan, Brock and Kresheck
oppose transfer. Defendant TWA favors the transfer of Harlan
1/The Van Fossen action has since been settled and dismissed.
Accordingly, the Panel's show cause order regarding this action
CJ will be vacated as moot.