IN RE: Radiation Incident at Washington, DC, on April 5, 1974

- Case MDL No. 213 Document 2 Filed 05/01/15 Page 1 of 6
ToT JUDICIAL PANEL ON.
BEFORE THE JUDICIAL PANEL MULTIDISTRICT LITIGATION
ON FILED
MULTIDISTRICT LITIGATION
SEP IS 1975
IN RE RADIATION INCIDENT AT ow
WASHINGTON, D.C. ON APRIL 5, 1974 DBE Riots
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM¥,
EDWARD WEINFELD, EDWIN A. ROBSON*, WILLIAM H. BECKERY,
JOSEPH S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM
This litigation consists of six actions pending in two
federal district courts: the Siegel, Blakeney,	Evans, Kappelmann
and Penna actions in the District of the District of Columbia
and the Powell action in the Middle District of Louisiana. Each
action arises from an incident in which all plaintiffs were
allegedly exposed to ultra-hazardous radioactive material that
was packaged by Value Engineering Company and then sent to
Washington National Airport for ultimate shipment to Baton Rouge,
Louisiana, by Delta Airlines. Value Engineering and Delta are
defendants inevery action. ~
Defendant Delta moves the Panel for an order transferring |
the Louisiana action to the District of the District of Columbia
for coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. §1407 with the actions pending there. Only the
plaintiff in the Louisiana action opposes transfer.
* Although Judges Wisdom, Robson and Becker were unable
to attend the Panel hearing, they have, with the consent
of all parties, participated in this decision.

Case MDL No. 213 Documgnt2 Filed 05/01/15 Page 2 of 6
i " We find that these actions involve common questions of fact
and that transfer of the Louisiana action to the District of the
District of Columbia under Section 1407 will best serve the con-
venience of the parties and witnesses and promote the just and
efficient conduct of this litigation.
Generally, the complaints in all the actions contain alle-
gations that defendant Value Engineering improperly packaged,
labeled, handled and monitored canisters of radioactive material
that it was transporting from its Virginia plant to Washington
National Airport, located in Washington, D.C. Plaintiffs allege
that defendant Delta improperly accepted and shipped these defec-
tively packaged and labeled containers, failed to warn passengers,
crew members and ground personnel of the radioactive substance
that it was transporting, and failed to monitor and detect any
leakage.
All the actions charge defendants with negligence, while four
of the District of Columbia actions add the theories of strict
liabiblity and "ultra-hazardous activity." Every plaintiff seeks
oo compensatory and punitive damages for their alleged injuries, which
include the possibility of cancer and genetic deformities. The
Kappelmann plaintiffs additionally desire an injunction requiring
Delta to provide adequate warnings about the presence of signifi-
cant amounts of radioactive materials to all prospective passen-
gers who may board flights transporting such substances or, in the
alternative, to all prospective passengers who may board these
flights who have been previously exposed to a significant amount
of radiation. Also, the Penna and Evans plaintiffs seek a dec-
laration of defendants' liability and request that a medical

Case MDL No. 213 Document 2 Filed 05/01/15 Page 3 0f 6
laboratory and information clearing house be established by de-
fendants in order to provide proper medical care and data for
plaintiffs.
In the Kappelmann action, the Department of Transportation,
the Civil Aeronautics Board and the Federal Aviation Administration
are also named as defendants. These parties are accused of neg-
ligence because of their refusal to promulgate regulations
requiring airlines to warn prospective passengers of the presence
of a significant quantity of radioactive material on flights that
they are scheduled to board.
Three of the six actions -- Siegel, Blakeney and Powell --
were commenced individually. Siggel and Blakeney were passengers
on one of the two flights carrying the radioactive substance,
and Powell was present in the freight area at the Louisiana
airport when the shipments arrived there.
The other three actions -- Kappelmann, Evans and Penna -- were
each instituted on behalf of a class of all passengers who were
aboard either of the two planes that transported the radioactive
material. In addition, the Penna and Evans plaintiffs include in
their purported classes the crews of the two Delta flights, plus
all persons on the ground who were exposed to the substance's
radiation as the canisters were delivered to Washington National ;
Airport, loaded onto a Delta flight, transported or unloaded. The
Kappelmann plaintiffs also desire a subclass or alternative class
consisting of prospective passengers who have sustained previous
exposure to a significant amount of radiation.
Plaintiff Powell concedes the existence of common questions
of fact between his action in Louisiana and the actions in the

Case MDL No. 213 Document 2 Filed 05/01/15 Page 4 of 6
District of Columbia, but maintains that duplicative discovery
on these questions can be avoided without transferring Powell
because he has access to any discovery obtained by plaintiffs in
four of the other actions. Plaintiff says that once he secures
such discovery, he will simply submit interrogatories to de-
fendants so that the information may be used in his action. He
also opposes transfer since the factual questions relating to
damages are unique to each action. Finally, plaintiff contends
that he would incur unnecessary expenses and be unduly inconven-
ienced by participating in pretrial proceedings in a distant forum.
Plaintiff's arguments are not persuasive and, in fact, are
apparently founded on a lack of understanding about the benefits
to be gained by coordinated or consolidated pretrial proceedings.
Traditionally, as is the case here, the common questions of
fact in multidistrict litigation transferred under Section 1407
| arise on the issue of liability, while the issue of damages is
unique to each action. Discovery pertaining to these damages
questions either are scheduled by the transferee judge to proceed
concurrently with the common discovery or await remand.
Assuming that plaintiff Powell would have complete access to
all information discovered by the other plaintiffs on the issue
of liability, if we follow his line of reasoning, he would then
propound interrogatories to defendants to verify this discovery.
This procedure itself would involve unnecessary duplication on the
part of plaintiff Powell as well as defendants and will be prevented
by Section 1407 proceedings, the purpose of which is to provide
a mechanism whereby all pretrial efforts are coordinated or con-
solidated into single undertakings so that discovery is immediately
S—

Case MDL No. 213 Document 2 Filed 05/01/15 Page 5 of 6
- = 5 =
"applicable to all actions. Furthermore, transfer under Section
1407 eliminates the possibility of inconsistent pretrial rulings.
We are confident that plaintiff Powell will experience a net
savings of time, effort and expenses by Section 1407 treatment
and the accompanying utilization of techniques recommended in the
Manual for Complex Litigation. For example, since plaintiff
shares virtually identical interest with all other plain-
tiffs in this litigation, the judicious use of liaison counsel,
lead counsel and steering committees could streamline the entire
pretrial operation and even eliminate any need for his counsel to
travel to the transferee district. See Manual for Complex Litiga-
tion, Part I, §§ 1.90-1.93 (rev.ed. 1973). Of course, since
the parties and witnesses usually do not personally participate in
pretrial conferences or hearings, it is unlikely that Powell or
any of his witnesses will ever have to travel to the transferee
forum. And, in any event, their depositions will probably occur
in proximity to where they reside. Fed.R.Civ.P. 45(4d) (2).
The District of the District of Columbia is clearly the most
suitable transferee forum for this litigation inasmuch as five of
the six actions are already pending in that district. Moreover,
many of the relevant documents and witnesses are located in the
Washington, D.C. metropolitan area because the radioactive mate-
rial in question was packaged and shipped from there.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. §1407,
the action listed on the following Schedule A and pending in the
Middle District of Louisiana be, and the same hereby is, trans-
ferred to the District of the District of Columbia and, with the
consent of that court, assigned to the Honorable George L. Hart
for coordinated or consolidated pretrial proceedings with the
actions pending in that district and listed on Schedule A.

Case MDL No. 213 Document 2 Filed 05/01/15 Page 6 of 6
SCHEDULE A DOCKET NO. 213
MIDDLE DISTRICT OF LOUISIANA
John A. Powell v. Delta Air Lines, Inc., et al. Civil Action
No. 75-112
DISTRICT OF THE DISTRICT OF COLUMBIA
Dennis E. Siegel v. Value Engineering Co., et al. Civil Action
No. 75-0239
Theodore W. Blakeney, Jr. v. Value Engineering Civil Action
Co., et al. No. 75-0240
Arthur C. Kappelmann, et ux. v. Delta Air Lines, Civil Action
Inc., et al. No. 74-1679
Willie L. Evans v. Value Engineering Co., et al. Civil Action
No. 74-1197
Richard Penna, et al. v. Value Engineering Co., Civil Action