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IN RE AIR DISASTER AT LOCKERBIE ON DECEMBER 21

November 2, 1992

IN RE AIR DISASTER AT LOCKERBIE, SCOTLAND ON DECEMBER 21, 1988; JUDITH A. PAGNUCCO, Individually and as Executrix of the Estate of ROBERT I. PAGNUCCO, deceased,
v.
PAN AMERICAN WORLD AIRWAYS, INC., PAN AM WORLD SERVICES, INC., and ALERT MANAGEMENT SYSTEMS, INC., Defendants. DONA BARDELLI BAINBRIDGE, Individually and as Administratrix of the Estate of HARRY M. BAINBRIDGE, deceased, v. PAN AMERICAN WORLD AIRWAYS, INC., PAN AM WORLD SERVICES, INC., and ALERT MANAGEMENT SYSTEMS, INC., Defendants. MOLENA A. PORTER, Individually and as Administratrix of the Estate of WALTER LEONARD PORTER, deceased, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., PAN AM WORLD SERVICES, INC., and ALERT MANAGEMENT SYSTEMS, INC., Defendants.



The opinion of the court was delivered by: THOMAS C. PLATT, JR.

 PLATT, CHIEF JUDGE.

 Defendant Alert Management Systems, Inc. ("Alert"), by counsel, has moved this Court for an Order granting judgment as a matter of law as to it pursuant to Rule 50(b) of the Federal Rules of Civil procedure. For the reasons set forth below, the motion is denied.

 BACKGROUND

 On December 21, 1988, Pan Am Flight 103 crashed near Lockerbie, Scotland; all 243 passengers and 16 crew members died. The surviving relatives and personal representatives of those who died sued Pan American World Airways, Inc., Pan Am World Services, Inc., and Alert Management Systems, Inc. (collectively "defendants"). On April 4, 1989, the Judicial Panel on Multidistrict Litigation consolidated all actions and transferred them to this Court. See In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 709 F. Supp. 231 (Jud.Pan.Mult.Lit.1989).

 Over a period of 11 weeks in the spring and summer of 1992, a jury trial was conducted in the passenger actions to determine if defendants had engaged in wilful misconduct that was the proximate cause of the disaster. *fn1" At the close of plaintiffs' case and again at the close of all the evidence, defendant Alert moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. Alert argued that plaintiffs had not offered sufficient evidence to allow a reasonable jury to conclude that Alert engaged in wilful misconduct that proximately caused the accident. This Court reserved judgment on Alert's latter motion and submitted the action to the jury. On July 10, 1992, the jury returned a verdict in favor of plaintiffs finding "Pan Am (including Alert)" had engaged in wilful misconduct and that such wilful misconduct was "a substantial factor in causing the disaster." Jury Verdict Form.

 Alert now renews its motion for judgment as a matter of law pursuant to Rule 50(b), incorporating by reference its original written motion. *fn2"

 DISCUSSION

 This Court is convinced that Alert is not entitled to judgment as a matter of law because Alert concededly is a wholly owned subsidiary of Pan Am created to be responsible for conducting all security measures and procedures, *fn3" and contrary to Alert's contention, defense counsel made it abundantly clear to the jury that it was not to distinguish between the liability of Pan Am and Alert. Furthermore, plaintiffs presented substantial evidence at trial such that a reasonable jury would almost certainly have concluded that Alert, by itself, was also guilty of wilful misconduct that proximately caused the disaster.

 A. Defense counsel treated Pan Am and Alert as a single entity.

 Alert contends that as "agent of Pan American World Airways . . . Alert's state of mind must be judged separately from Pan Am in determining whether Alert was guilty of 'wilful misconduct' that caused the disaster. Memorandum of Defendant Alert in Support of Renewed Motion for Judgment as a Matter of Law (hereinafter "Memorandum in Support") at 3. However, a statement of defense counsel for both Pan Am and Alert at the opening of trial belies this contention. Defense counsel told the jury to treat Pan Am and Alert as "one":

 Now technically these are two separate companies. Quite frankly, for your purposes, you can consider them one. We created Alert to help with the security, and as far as we're concerned and you should be concerned, I'm going to talk from now on about Pan Am, but Pan Am is responsible for Alert as it is for its own force.

 (Tr. 64) (emphasis added).

 The jury, this Court, and plaintiffs were entitled throughout the trial to rely upon this representation and admission by counsel. Counsel may not have it both ways. He may not claim Alert and Pan Am are one and then, once the verdict is ...


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