Opinion
No. 160.
April 10, 1974.
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.
Although Judge Murrah was not present at the hearing, he has, with the consent of all parties, participated in this decision.
OPINION AND ORDER
On July 31, 1973, a Delta Airlines commercial aircraft crashed while on approach for landing at Logan International Airport in Boston, Massachusetts. More than 80 persons aboard perished as a result of the crash. Certain plaintiffs and defendant Delta Airlines move the Panel for an order transferring all the litigation arising out of the crash of that ill-fated flight to the District of Massachusetts for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. The majority of plaintiffs support transfer, but they disagree on which district is the most appropriate transferee forum. On the basis of the briefs filed and the hearing held, we find that these actions contain common questions of fact and transfer of all the actions to the District of Massachusetts will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
Plaintiffs in the action entitled Ann G. D'Arcy, etc. v. Delta Airlines, Inc., et al., S.D.N.Y., 73-Civ-5147, originally listed on Schedule A, opposed transfer of their action to the District of Massachusetts. Inasmuch as the Honorable Marvin E. Frankel has granted plaintiffs' motion to remand their action to the New York state court, the question of transfer of that action pursuant to Section 1407 is now moot.
All plaintiffs are asserting the liability of a common defendant arising out of the same crash and in our estimation this litigation presents a classic case for transfer under Section 1407. The only real dispute is over the appropriate transferee district. The majority of the crash victims resided in New Hampshire and Vermont and it has been argued that transfer to one of those districts would best serve the convenience of the parties and witnesses.
We have generally assigned air crash litigation to the district in which the crash has occurred. See, e.g., In re Florida Everglades Air Disaster Litigation, 360 F. Supp. 1394, 1395 (J.P.M.L. 1973); In re Huntington, West Virginia, Air Disaster Litigation, 342 F. Supp. 1400, 1403 (J.P.M.L. 1972). There are no persuasive reasons for deviating from that general rule in this litigation. The crash occurred within the District of Massachusetts, and many of the relevant documents and anticipated witnesses are located there.
We also emphasize that transfers under Section 1407 are for pretrial proceedings. The suggestion that it would, in these days of gasoline shortages, be unduly burdensome for Vermont and New Hampshire plaintiffs to travel to Boston for trial is completely unwarranted. We recognize, however, that in recent air disaster litigation processed under Section 1407 the issue of liability has been resolved in the transferee court. But any trial on the issue of damages has normally taken place in the transferor district where the witnesses and documents relevant to that issue are located.
It is therefore ordered that all the actions listed on the attached Schedule A pending in districts other than the District of Massachusetts be, and the same hereby are, transferred to the District of Massachusetts and, with the consent of that court, assigned to the Honorable Andrew A. Caffrey for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district.