In Re Air Crash Disaster at Duarte, Cal. on June 6, 1971 , 346 F. Supp. 529 ( 1972 )

346 F. Supp. 529 (1972)

In re AIR CRASH DISASTER AT DUARTE, CALIFORNIA ON JUNE 6, 1971.

No. 106.

Judicial Panel on Multidistrict Litigation.

July 26, 1972.

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.

OPINION AND ORDER

PER CURIAM.

On June 6, 1971, a United States Marine Corps Phantom Jet fighter and a Hughes Air West DC-9 commercial airliner collided in mid-air near Duarte, California. The pilot of the Phantom Jet and the 44 passengers and five crew members aboard the DC-9 received fatal injuries. The radar intercept officer aboard the Phantom Jet is the sole survivor of the collision.

More than thirty actions arising out of this crash have been filed in the Central District of California and have been assigned to Judge Peirson M. Hall. Nine other civil actions are pending in the District of Utah and two in the Western District of Washington. On its own initiative the Panel ordered the parties to these actions to show cause why they should not be transferred to a single district for coordinated or consolidated pretrial proceedings. On the basis of the responses to the Panel's order and the arguments presented at the hearing, we hold that to further the convenience of the parties and witnesses and to promote the just and efficient conduct of the litigation the actions must be transferred to the Central District of California for pretrial proceedings.

All parties responding to the Panel's order to show cause concede that the Central District of California is the most appropriate district for transfer under Section 1407. We agree. The mid-air collision out of which these actions arose occurred in that district and both planes involved in the collision originally departed from locations within that district. In addition, the lone survivor of the crash and the majority of witnesses reside there. Furthermore, the majority of the litigation has been filed there, a document depository has been established and all parties have been participating in the discovery program being supervised by Judge Hall in that district.

The responding plaintiffs in the Utah and Washington actions argue, however, that any transfer should be limited to discovery relating to the issue of liability. They contend that discovery relating to the issue of damages is local in nature and does not concern questions of fact common to the other cases.

Section 1407(a) authorizes the Panel to "separate any claim, cross-claim, counter-claim, or third-party claim" from the remainder of the transferred action and to remand such claims to the transferor district. See, e. g., In re Hotel Telephone Charge Antitrust Litigation, 341 F. Supp. 771 (Jud.Pan.Mult.Lit. 1972); In re Penn Central Securities Litigation, 325 F. Supp. 309 (Jud.Pan. Mult.Lit.1971). It does not authorize the Panel to transfer one issue raised by a claim, such as liability, while remanding another issue raised by the same claim such as damages. For this reason we deny respondents' request. Cf. In re Antibiotic Drugs Antitrust Litigation, 299 F. Supp. 1403 (Jud.Pan.Mult.Lit., 1969); In re Air Crash Disaster at Greater Cincinnati Airport, 298 F. Supp. 353 (Jud.Pan.Mult.Lit., 1968). We also think it more conducive to effective judicial management to allow the transferee judge to determine whether and to what extent discovery on separate issues is appropriate for coordinated or consolidated pretrial proceedings. See, In re San Juan, Puerto Rico Air Crash Disaster, 316 F. Supp. 981 (Jud. Pan.Mult.Lit., 1970).

It is therefore ordered that all actions listed on the attached Schedule A pending in the District of Utah and the Western District of Washington be, and the same hereby are, transferred to the Central District of California and, with the consent of that court, assigned to the Honorable Peirson M. Hall for co-ordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district.

SCHEDULE A
District of Utah                            DOCKET NO. 106
Coy M. Morris, et al. v. United States of America,         Civil Action
et al.                                                     No. C-73-72
Marian C. Dunn, et al. v. United States of                 Civil Action
America, et al.                                            No. C-74-72
Alice W. Mangum, et al. v. United States of                Civil Action
America, et al.                                            No. C-75-72
Jeanne Pyke, et al. v. United States of America,           Civil Action
et al.                                                     No. C-76-72
Jeanne M. Pyke, et al. v. United States of                 Civil Action
America, et al.                                            No. C-77-72
Afton G. Allen, et al. v. United States of America,        Civil Action
et al.                                                     No. C-78-72
Virginia H. Pyke, et al. v. United States of               Civil Action
America, et al.                                            No. C-80-72
Janet T. Schoenhals, et al. v. United States of            Civil Action
America, et al.                                            No. C-81-72
John Jay Garcia, et al. v. United States of                Civil Action
America                                                    No. C-92-72
Central District of California
Margaret M. Reeves, etc. v. Hughes Air Corp.,              Civil Action
etc.                                                       No. 71-1425-PH
In the Matter of the Petition of Glenda Gabel,             Civil Action
etc.                                                       No. 71-1431-PH
Howard Brand, et al. v. Hughes Air West, Inc.              Civil Action
No. 71-1465-PH
Norene E. Forgy, et al. v. Hughes Air West, Inc.           Civil Action
No. 71-1555-PH
Glenda Gabel, etc. v. Hughes Air Corp., etc.               Civil Action
No. 71-1595-PH
James D. Dean, M. D. v. Hughes Air Corp., etc.             Civil Action
No. 71-1822-PH
Albert Denegal, Jr., etc. v. Hughes Air West,              Civil Action
Inc.                                                       No. 71-1996-PH
Ralph D. Miller, et al. v. Hughes Air Corp., etc.          Civil Action
No. 71-2021-PH
Chase Apgar, et al. v. Hughes Corp., etc.                  Civil Action
No. 71-2253-PH
In the Matter of the Petition of Afton G. Allen,           Civil Action
etc.                                                       No. 71-2334-PH

SCHEDULE A
In the Matter of the Petition of Janet T. Schoenhals,      Civil Action
et al.                                                     No. 71-2335-PH
In the Matter of the Petition of John Jay Garcia,          Civil Action
etc.                                                       No. 71-2336-PH
In the Matter of the Petition of Virginia H.               Civil Action
Pyke, etc.                                                 No. 71-2337-PH
In the Matter of the Petition of Jeanne M.                 Civil Action
Pyke, etc.                                                 No. 71-2338-PH
In the Matter of the Petition of Jeanne F. Pyke,           Civil Action
etc.                                                       No. 71-2339-PH
Helen F. Fennell, etc. v. Hughes Air Corp., etc.           Civil Action
No. 71-2528-PH
Glen Leroy Hunter, et al. v. Hughes Air Corp.,             Civil Action
etc.                                                       No. 71-2791-PH
In the Matter of the Petition of Alice Wilkinson           Civil Action
Mangum, etc.                                               No. 71-2796-PH
Otto Conrad Davidson, etc. v. Hughes Air Corp.,            Civil Action
etc.                                                       No. 71-2831-PH
Cynthia Kalbfleisch, etc. v. Hughes Air Corp.,             Civil Action
et al.                                                     No. 71-2878-PH
Michael Rene Garcia, etc. v. Hughes Air Corp.,             Civil Action
etc.                                                       No. 71-2932-PH
Glenda Gabel, etc. v. The United States of America,        Civil Action
et al.                                                     No. 72-1-PH
John D. McCorden, et al. v. Hughes Air Corp.,              Civil Action
et al.                                                     No. 72-25-PH
Daniel Subic, et al. v. Hughes Air West, Inc.              Civil Action
No. 72-54-PH
Elizabeth W. Kaufman, etc. v. United States of             Civil Action
America, et al.                                            No. 72-344-PH
Lee C. Potter, et al. v. Hughes Air Corp., etc.            Civil Action
No. 72-450-PH
Judith V. Wilkerson, etc. v. Hughes Air Corp.,             Civil Action
et al.                                                     No. 72-469-PH
Norene E. Forgy, et al. v. The United States of            Civil Action
America, et al.                                            No. 72-633-PH
Michael Rene Garcia, etc. v. United States of              Civil Action
America                                                    No. 72-635-PH
Helen E. Fennell, etc. v. The United States of             Civil Action
America, et al.                                            No. 72-875-PH
Howard Brand, et al. v. The United States of               Civil Action
America                                                    No. 72-924-PH
Western District of Washington
Carol Nicolay, etc. v. United States                       Civil Action
262-72
Etta Mae Bruner, etc. v. United States of                  Civil Action
America                                                    No. 329-72C2

NOTES

[*] Although Judges Wisdom and Lord were not present at the hearing, they have, with the consent of all parties, participated in this decision.