The opinion of the court was delivered by: BRAMWELL
The instant matter concerns certain Louisiana plaintiffs' motions to remand their respective cases to New Orleans for the trial of damages. It also involves Eastern Airlines' motion for a certification of the order entered in accordance with the jury's finding of negligence for appeal to the Second Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b) (1976) or, in the alternative, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. However, prior to the discussion and ultimate resolution of said motions, their stark outlines must be colored by some facts.
The ill-fated Eastern Airlines flight 66 left New Orleans, Louisiana on June 24, 1975 and crashed at Kennedy Airport in the course of an instrument landing approach. This catastrophic event marked the demise of one hundred and thirteen of the one hundred and twenty-four individuals aboard the aircraft. Nine passengers and two crew members survived the crash. Shortly thereafter, numerous actions were commenced in four federal district courts, to wit, the Southern District of New York, the Eastern District of New York, the Eastern District of Louisiana, and the Southern District of Mississippi. Since a common legal and factual thread was interwoven in these geographically diverse suits, the defendant Eastern Airlines moved the Judicial Panel on Multidistrict Litigation for an order pursuant to 28 U.S.C. § 1407 transferring all actions to this Court for coordinated and consolidated pretrial proceedings. After due deliberation, the Panel granted Eastern's motion. See In re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975, 407 F. Supp. 244 (Jud.Pan.Mult.Lit.1976). At the outset, thirty-seven actions were transferred. However, according to the Panel, the multidistrict litigation grew in time to ninety-one cases.
In the course of pretrial discovery, some procedural restructuring transpired. Among the litigious changes made were a severance of the passenger cases from the crew cases and a severance of the passengers' claims against Eastern Airlines and the United States from their claims against Boeing, Rockwell/Collins and the Port Authority. Furthermore, on December 15, 1977, after hearing argument and after due deliberation, this Court ordered that all passenger actions commenced in any other Court and transferred to this Court by the Panel pursuant to 28 U.S.C. § 1407 were to be transferred to this Court pursuant to 28 U.S.C. § 1404(a) and were to be consolidated for a trial on liability. Said order further provided that such a transfer was to be effected without prejudice to the right of any of the passenger plaintiffs to move subsequent to final judgment for an order remanding their individual actions to the district from whence it came for a trial on damages.
In the ensuing months, and after one adjournment of the May 1, 1978 trial date, settlement negotiations among the passenger plaintiffs, Eastern Airlines and the United States did not bear fruit. Rather, as the new September 11, 1978 trial date drew near, a liability trial appeared inevitable. On the eve of trial, however, the United States stated that it would not contest liability and agreed to permit a liability judgment to be entered against it on behalf of the remaining passenger plaintiffs who had not settled. However, it did so without prejudicing its future right to raise certain specified defenses such as capacity to sue.
In view of this no-contest position, a motion was made to sever the cross-claims and third-party claims that the defendant Eastern Airlines had interposed against the United States. After due deliberation, and in view of the apparent existence of a contribution agreement which would render the trial of such claims but an idle ceremony, said motion to sever was granted. This further pared the liability trial leaving Eastern Airlines as the sole defendant. This change in posture, however, did not result in the settlement of the liability issue. Instead, on September 18, 1978, the liability question proceeded to trial.
On the morning of trial, fifteen of the passenger plaintiffs approached the bench for an order directing the entry of judgment against Eastern Airlines on the basis that Eastern was liable without fault under the provisions of the Warsaw Convention/Montreal Agreement. After due consideration, said motion was subsequently granted, Cf. Day v. Trans World Airlines, Inc., 393 F. Supp. 217 (S.D.N.Y.), Aff'd, 528 F.2d 31 (2d Cir. 1975), Cert. denied, 429 U.S. 890, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), and the cases of the fifteen Warsaw/Montreal plaintiffs were ordered severed from the impending liability trial.
During the course of the trial, four of the thirty-six passenger cases on trial settled, thus leaving thirty-two passenger plaintiffs to be bound by the jury's finding. The trial was long and, due to the scientific and technical nature of the evidence, it was somewhat complicated. However, after numerous weeks, the trial odyssey concluded on October 25, 1978 when the jury returned a unanimous verdict in favor of the plaintiff passengers against Eastern Airlines on the issue of liability. The motions for resolution today followed quickly on the heels of said verdict, and, for the sake of clarity, they will now be discussed individually.
LOUISIANA PLAINTIFFS' REMAND MOTION
Consideration will first be given to the Jenkins, Hickey, Domanque, Windbourne and Bright motions to remand their respective cases to the District Court for the Eastern District of Louisiana and the Noland motion to remand his case to the Middle District of Louisiana for individual trials on the issue of damages. In support of these motions, the plaintiffs rely on the aforementioned December 15, 1977 order of this Court wherein it was stated that the transfer of the multidistrict cases for a trial on liability would not foreclose the plaintiffs from moving before this Court for a remand to their original districts for trials on damages.
In order to reach a determination of these remand motions, the December 1977 order and the reasoning underlying it must be examined. In view of the somewhat unorthodox nature of this order, not to undertake such a discussion would be similar to attempting to gather all of the rice after the wedding is over.
Normally, after pre-trial proceedings have drawn to a conclusion in a multidistrict case, each of the cases transferred by the Panel pursuant to 28 U.S.C. § 1407 would be
remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated . . . .
28 U.S.C. § 1407(a) (1976). In the instant case, however, this procedure was not followed. Instead, in light of the transferee Court's power to transfer the transferred cases pursuant to section 1404(a), Pfizer, Inc. v. Lord, 447 F.2d 122, 125 (2d Cir. 1971); In re Air Crash Near Duarte, California on June 6, 1971, 357 F. Supp. 1013, 1015, 1016 (C.D.Cal.1973); In re Antibiotic Antitrust Actions, 333 F. Supp. 299, 303 (S.D.N.Y.1971); Cf. In re Plumbing Fixture Cases, 298 F. Supp. 483, 495-96 (Jud.Pan.Mult.Lit.1968), as has been noted, this Court ordered the section 1407 transfer cases to be transferred pursuant to § 1404(a) and consolidated for trial in this Court on the issue of liability.
Although the Panel had transferred the subject cases for pretrial purposes only, this Court's order did not undermine the intent underlying their directive. For even if the Panel had wanted to transfer said cases for trial, it was without authority to do so. Pfizer, supra at 124. Moreover, that such a 1404(a) transfer by the transferee Court was contemplated by the Panel is apparent from a reading of Rule 11(b) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation:
Each transferred action that has not been terminated in the transferee court will be remanded by the Panel to the transferor district for trial, Unless ordered transferred by the transferee judge to the transferee or other district Under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406. In the event that the transferee judge transfers the action under 28 U.S.C. §§ 1404(a) or 1406, no further action of the Panel shall be necessary to authorize further proceedings including trial.
Rules following 28 U.S.C. § 1407 (1976) (emphasis added).
The entry of the order directing the transfer and consolidation of the cases for a trial on liability was predicated on this Court's view of the practicalities of this case. Of significance in this regard is Judge Hall's cogent observation in one of his opinions involving the Duarte air crash litigation. In ordering that all cases assigned to him by the Panel pursuant to section 1407 be transferred to him pursuant to section 1404(a) for trial, Judge Hall reasoned that
(T)here is only one operative set of facts for the determination of liability. To remand the cases to the various courts for trial after the completion of discovery would require trials on the merits in three different districts. . . . (The) inescapable fact is that such trials, at best, require extensive and intensive preparation and skill and are usually prolonged, and may produce different results in different districts. Such a result in this case is certainly not "in the interest of justice" nor "for convenience of witnesses." Moreover, each of the cases transferred here "might have been brought" in this district.
In re Air Crash Near Duarte, supra at 1016. Such considerations were deemed equally applicable to the instant case especially in light of the Panel's own firm opinion that
the district containing the situs of the crash is generally the most appropriate transferee district for litigation of this type (,)
In re Air Crash Disaster near Dayton, Ohio, 310 F. Supp. 798, 799 (Jud.Pan.Mult.Lit.1970), coupled with its observation in transferring the instant case that
(m)ost of the anticipated key witnesses on the issue of liability reside near Kennedy Airport, for example: the FAA air traffic controllers from the airport control tower, traffic controllers from the New York Common I.F.R. Room and the New York Air Route Traffic Control Center, local weather observers and forecasters, Port of New York Authority officials responsible for supervising the airport's operations, and approximately forty eyewitnesses. Moreover, the tape recordings of conversations between the traffic controllers and the flight-crew, as well as other relevant documents from the FAA and the National Weather Service, are located in the Eastern District of New York.
In re Kennedy Air Crash, supra at 246.
Although the Panel's Rule 14 may have contemplated a section 1404(a) transfer in terms of a transfer of the liability as well as the damage issue, a 1404(a) transfer order contemplating the trial of the liability issue only is not completely devoid of precedent. In the case of In re Multidistrict Civil Actions Involving the Air Crash Disaster, New Hanover, New Hampshire, on October 25, 1968, transferee Judge Hugh Bownes, now a First Circuit Judge but then sitting as district judge, ordered the transfer of all cases to New Hampshire for a consolidated trial on liability. In the event liability was established, Judge Bownes further directed the remand of the cases to the districts where the actions had originated for trials on damages. MDL No. 43 (D.C.N.Hamp.1971), Noted in A. Wright & A. Miller, Manual For Complex Litigation Part 1, § 522(2) at 159 n. 351 (1977). Considering the aforementioned practical and equitable factors, and following Judge Bownes' initiative, this court opined that a transfer for a liability trial was warranted, impliedly reserving for a later date a decision on whether the individual damage trials should also be held in this Court. Thus, at this point, just as this Court examined the equities and practicalities in transferring and consolidating the cases for a liability trial, an examination of the same must now be undertaken with respect to the requested remand for damage trials.
Of initial note in this respect is that a prerequisite to a section 1404(a) transfer is that it can only be made to a district where the action might have been brought. 28 U.S.C. § 1404(a) (1976). Since the plaintiffs involved in the immediate remand motions reside in the respective districts to which they seek a transfer, venue would be proper. 28 U.S.C. § 1391(a) (1976). As to the factual practicalities of the instant requests, the following facts are of significance. The business records of both the plaintiffs and the decedents are located in Louisiana, most of their damage witnesses reside in Louisiana, the defendant Eastern Airlines does business and has been served with process in Louisiana, and the respective districts represent the plaintiffs' choice of forum as their original actions were filed there. Thus, there exists no commonality of facts or considerations of party and witnesses convenience which would tie the trial of the damage issue to New York. To the contrary, the consideration of the convenience of the parties and the witnesses and the interests of justice dictate that the Middle District and Eastern District of Louisiana are the more appropriate forums for the determination of damages in these cases. ...