IN RE: McDonnell Douglas "Wild Weasel II/APR-38" Contract Litigation

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An sane 6ITA RCT hl
ym	BEFORE THE JUDICIAL PANEL n.
® ON HRY 26 1876
MULTIDISTRICT LITIGATION PATRICIA 1 Jur	ATRICIA	0. HOWARD
ELERK	OF THE PANEL
IN RE MeDONNELL DOUGLAS "WILD WEASEL AN/ ) DOCKET NO. 236APR-38" CONTRACT LITIGATION ) *
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD,
EDWIN A. ROBSON *, WILLIAM H. BECKER, JOSEPH S. LORD, III,
STANLEY A. WEIGEL *, AND ANDREW A. CAFFREY, JUDGES OF
THE PANEL
PER CURIAM
The "Wild Weasel AN/APR-38" is an electronic counter-
measures system for fighter aircraft and is designed to detect and
react to enemy air defenses. McDonnell Douglas Corporation
® holds the prime contracts from the United States Air Force
for the design, development, testing and evaluation of the
Wild Weasel system for use in the F-4E jet aircraft, as it did
for the Wild Weasel system used in the F-4TL aircraft.
McDonnell in turn contracted with Itek Corporation
for the development of a Special Warning Receiver (SWR), which
is a subsystem of the overall Wild Weasel system, at least in
1/
so far as that system was being developed for the F-4E.
The SWR scans electronically over a predetermined frequency
* Judges Robson and Weigel were unable to attend
the Panel hearing and, therefore, did not participate
in the consideration or decision of this matter.
/ The limited material available to the Panel contains
contradictory contentions regarding the SWR's presence
PY in the Wild Weasel system designed for the F-4D.

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range and is programmed to detect specific signals, and then relay
this information to another subsystem for further processing.
After the information is analyzed in that subsystem,
it is displayed to the pilot of the aircraft on still another
subsystem known as the Control Indicator Set (CIS). Loral
Corporation was under contract with McDonnell to develop
2/
: the CIS.
On August 22, 1973, Loral filed an action in the
Southern District of New York against McDonnell for breach
of contract. Loral alleges that its commitment to develop
the CIS was impossible to perform because McDonnell failed
to disclose certain knowledge in its possession. McDonnell ®
has counterclaimed for breach of contract on the ground that
Loral failed to comply with its obligations under the contract.
On September 15, 1975, McDonnell filed a breach of
contract action in the Eastern District of Missouri against
Itek for alleged failure to satisfy its contractual commit-
ments. Itek has counterclaimed for, inter alia, reformation
or rescission of its contracts with McDonnell on theories of
technical, commercial and legal impossibility of performance.
The counterclaim includes a breach of contract count for
—_—
2/ The Loral-CIS was apparently in the design for the
F-4D Wild Weasel system. There is some dispute
among the parties over whether it was subsequently
incorporated in the design for the F-4E Wild Weasel
system. ®

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® McDonnell's alleged failure to disclose certain superior knowledge.
In addition, Itek has added the Secretaries of Defense and the
Air Force as defendants to the counterclaim.
This matter is before the Panel on Itek's motion
to transfer the Itek action to the Southern District of New York
for coordinated or consolidated pretrial proceedings, pursuant
to 28 U.S.C. §1407, with the Loral action pending in that
district. All other parties oppose the motion. Although
there may be some minimal common questions of fact between
these two actions, we find that the requested transfer would
not serve the convenience of the parties and witnesses or:
promote the just and efficient conduct of the litigation and,
® accordingly, we deny the motion.
Itek premises its arguments in support of its motion
primarily on a claimed factual commonality between these
actions arising from the technical relationships between the
SWR snd the CIS. Because these subsystems interface with a
common computer subsystem, Itek maintains, they are so closely
linked that the required analysis of the SWR and the CIS
in the respective actions will necessarily overlap. Itek
contends that although the Loral-CIS and the Itek-SWR were
perhaps designed for different aircraft, this difference is
of no consequence since it is the overall Wild Weasel system
itself which provides the basis for commonality. Itek insists
®

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that in the absence of transfer, discovery concerning this ®
overall system will be needlessly duplicated.
Itek also argues that a comparison of the relevant
allegations in the complaints reveals a substantial area of
overlap relating to McDonnell's alleged failure to disclose
knowledge in its possession stemming from certain study contracts
which it had commissioned. This overlap is another compelling
reason to order transfer, Itek asserts.
Although Itek recognizes that discovery in Loral
is in its late stages, Ye nonetheless urges that substantial
economies can be achieved by combining the two actions for
pretrial proceedings under Section 1407. For example, Itek
suggests, the discovery had in the New York action could be ®
made available to it and thus short-cut the inevitable lengthy
discovery in its action.
While we understand Itek's concerns, on the basis
of the record before us, we cannot find any substantial common-
| ality between these actions. Certainly, discovery in each
action must involve some data concerning the overall wild
Weasel system. But we are persuaded that the Loral-CIS and
the Itek-SWR are essentially different products and therefore
raise predominantly different factual issues. Indeed, counsel
3/ Indeed, the New York court has set May 1, 1976
as the cutoff date for intra-party discovery
in Loral.
®

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® for Loral maintains, and we have no reason to doubt him, that
his intensive study of the CIS during the two and one-half
year history of Loral had failed to even make him aware of
the SWR prior to the proceedings before the Panel. Moreover,
we are heavily influenced by the position of the Secretaries
of Defense and the Air Force, who, in our view, have the best
vantage point from which to judge the similarity of the Loral-
CIS and the Itek-SWR, and who represented to us that, other
than for a common computer interface, these two subsystems
are unrelated.
Even assuming, however, that we overcame the hurdle
of commonality, there is another highly persuasive reason which
® mandates denial of the motion to transfer. Loral has been
pending for dose to two and one-half years and is rapidly
approaching trial, while Itek was only recently filed. And it
is possible that a transfer at this time might delay the trial
of Loral. We are not convinced that such a delay would be
justified by a concomitant increase in the expeditiousness
with which Itek could be resolved. This factor, coupled with
the fact that only two actions are involved here, leads us
to conclude that trans fer under Section 1407 would surely not
promote the just and efficient conduct of the litigation.
Compare In re Air Crash Disaster at Falls City, Nebraska,
on August 6, 1966, 298 F. Supp. 1323, 1324 (J.P.M.L. 1969),
with In re Scotch Whiskey Litigation, 299 F. Supp. 543, 544
® (J.P.M.L. 1969).

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IT IS THEREFORE ORDERED that the motion to transfer ®
the action listed on the following Schedule A and pending
in the Eastern District of Missouri to the Southern District
of New York for coordinated or consolidated pretrial proceed-
ings, pursuant to 28 u.s.c. §1407, with the action listed on
Schedule A and pending in that district, be, and the same
hereby is, DENIED.
®
®

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[ SCHEDULE A DOCKET NO. 236EASTERN DISTRICT OF MISSOURI | Civil Action
McDonnell Douglas Corp. v. Itek Corp. No. 75-809 (c) (1)
SOUTHERN DISTRICT OF NEW YORK
Civil Action
Ioral Corp. v. McDonnell Douglas Corp. No. 73 Civ. 3649