IN RE: Air Crash Disaster Near Papeete, Tahiti, on July 22, 1973

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JUDICIAL PA
BEFORE THE JUDICIAL PANEL MULTI	SIHC AL bition
C) ON FILETMULTIDISTRICT LITIGATION
JUN 19 1975
IN RE AIR CRASH DISASTER NEAR PAPEETE, ) PB NEHA	. RBO6
TAHITI, ON JULY 22, 1973 ) CRG S, ron
OPINION AND ORDER
BEFORE ALFRED P, MURRAH, CHAIRMAN, AND JOHN MINCR WISDOM,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER,
JOSEPH S. LORD, III *, AND STANLEY A. WEIGEL, JUDGES OFTHE PANEL
PER CURIAM
A Boeing 727 aircraft, being operated as Pan American
. Flight No. 816, crashed into the ocean shortly after takeoff
from the airport at Papeete, Tahiti, on July 22, 1973.
® The plane was departing following an intermediate stop in its
route from Auckland, New Zealand, to Los Angeles, California.
Sixty-nine passengers and ten crew members died as a result of
the crash. Neither the wreckage of the aircraft nor the remains
of any of the decedents have yet been recovered.
Eighteen actions arising out of the crash have thus
far been instituted in federal district courts: eight in the
Northern District of California, eight in the Central District
of California and two in the District of Rhode Island. The Panel,
EV
on its own initiative, ordered the parties to show cause why
* Although Judge Lord was unable to attend the Panel hearing,
he has, with the consent of all parties, participated
® in this decision.1/ 28 u.s.c. §1407(c) (1); Rule 8, R.P.J.P.M.L., 65 F.R.D. 253,
© 258-59 (1975).

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these actions should not be transferred to a single district
for coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. §1407. All responding parties recognize the need for
2/
Section 1407 treatment, but disagree over the appropriate
situs for the transferee court. We find that these actions
involve common questions of fact and that their transfer under
Section 1407 to the Central District of California will best serve
the convenience of parties and witnesses and promote the just
and efficient conduct of the litigation.
Defendants Boeing and Pan Am urge that the Panel
® trams fer this litigation to the Western District of Washington,
even though no actions are presently pending in that district.
Their argument rests on the proposition that Boeing, which is
headquartered in Washington, will become the "target" defendant
as a result of treaty provisions insulating Pan Am from liability
beyond a specified dollar limit per decedent. Thus, they contend,
2/ At the hearing on this matter, counsel for the Rhode Island
plaintiffs conceded that transfer under Section 1407 was
indeed appropriate. He urged the Panel, however, to defer
transfer of the Rhode Island actiorsuntil the court there
rules on certain pretrial motions concerning claims against
insurance companies under Rhode Island law. We see no
reason for delaying transfer of these actions because the
motions can be presented to and determined by the trans-
feree court. See In re Plumbing Fixture Cases, 298 F. Supp.
484,495-96 (J.P.M.L. 1968).

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the bulk of the discovery taken of defendants will occur in
the Western District of Washington and, therefore, that district
would be the best choice for the transferee forum. Plaintiffs,
on the other hand, are strongly opposed to the Washington loca-
tion and, instead, are split between the Central and Northern
Districts of California.
3/
Regardless of the merits of defendants' assertions,
we are extremely reluctant to select a district in which no
related action is pending. Accordingly, either of the California
forums suggested by plaintiffs would be more preferable.
C Both the Central and Northern Districts of California
could, in our view, be described as appropriate transferee
districts for this litigation. An equal number of actions are
pending in each of these districts and there appears to be little
to distinguish the two. On balance, however, we are persuaded
that the Central District of California is the better choice.
Judge Robert Firth, to whom all the actions there are assigned,
3/ , a Co o	During oral argument, counsel for several plaintiffs indi-
cated that they intend to challenge the constitutionality
of the relevant treaty provisions. In addition, counsel
indicated that they intend to pursue their claim of willful
misconduct against Pan Am, which,	if sustained, would negate
the dollar limitations applicable to Pan Am. See Kennelly,
Litigation and Trial of Air Crash Cases, Vol. 2, Ch. 7,
0) p. 10 (1968 ed.).

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has received arguments on a motion for class designation and,
as a result, has had an opportunity to become acquainted with
some of the issues involved in this litigation. Thus, he appears
to be in the best position to supervise the pretrial proceedings
in these actions toward their most just and expeditious conclu-
sion.
IT IS THEREFORE ORDERED that the actions listed on
the following Schedule A and pending in districts other than
the Central District of California be, and the same hereby are,
transferred to the Central District of California and, with
@® the consent of that court, assigned to the Honorable Robert Fir th
for coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. §1407 with the actions pending in that district and
listed on Schedule A.
®

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SCHEDULE A DOCKET NO. 206
| DISTRICT OF RHODE ISLAND
Barbara Levine, etc. v. Pan American Civil Action
World Airways, et al. No. 74-35
Joan M. Geary, etc. v. Pan American Civil Action
World Airways,	et al. No. 74-34
CENTRAL DISTRICT OF CALIFORNIA
Marc Wickliffe, et al. v. Pan American Civil Action
World Airways, Inc., et al. No. CV-74-69-RF
Daryl Arnold, etc. v. Pan American Civil Action
World Airways, Inc., et al. No. CV-74-746-RF
Jacobus Cornelis Joannes Maria Priemus,
et al. v. Pan American World Airways, Inc., Civil Action
et al. No. 74-1135-RF
Jerome G. Zapp, et al. v. Pan American Civil Action
o World Airways, Inc., et al. No. CV-74-1448-RF
Margaret Metcalf, etc. v. Pan American Civil Action
World Airways, Inc., et al. No. CV-74-2057-RF
Rue Hubert, etc. v. Pan American Civil Action
World Airways, Inc., et al. No. CV-74-2072-RF
Daryl Arnold, etc. v. Pan American Civil Action
World Airways, Inc., et al. No. CV-74-2073-RF
Jerome G. Zapp, et al. v. Pan American Civil Action
World Airways, Inc. No. CV-74-1994-RF
NORTHERN DISTRICT OF CALIFORNIA
Civil Action
Barbara R. Gefter, etc. v. The Boeing Co. No. C74-1486-GBH
Arthur H. Harris, et al. v. The Boeing Co. Civil Action
No. C74-1498-SW
Juergen Van Beekum, et al. v. The Boeing Co. Civil Action
® No. C74-1516-0JC

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SCHEDULE A DOCKET NO, 206
NORTHERN DISTRICT OF CALIFORNIA
Laura Ann Lambert, etc. v. The Boeing Co., Civil Action
et al. No. C74-1519-AJZ
Francis J. Nelson, etc. v. Pan American Civil Action
World Airways, et al. No. C74-1523-AJZ
Eugene R.P. Leman, etc. Vv. The Boeing Co. Civil ActionNo. C74-1524-ACW
Barbara R. Gefter, etc. v. The Boeing Co. Civil Action
No. C74-1360-SC
Barbara R. Gefter, etc. v. The Boeing Co. Civil Action
No. C74-1362-SAW