Opinion
No. 47.
August 6, 1970.
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 he was unable to attend the May 22, 1970 hearing in Washington, D.C. Judge Weigel has, with the consent of all parties, participated in this decision.
OPINION AND ORDER
On April 30, 1970, the United States filed a motion to transfer certain actions in which it was a defendant to the District of Puerto Rico for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407. Puerto Rican International Airlines (PRINAIR) then requested that several additional actions in which the United States was not a party also be considered for transfer under section 1407. A total of 27 actions are now pending in five different district courts. See Schedule A. All arise from the Puerto Rican International Airlines crash near San Juan, Puerto Rico, on March 5, 1969 in which twenty persons were killed.
All parties agree that the transfer of these actions to the District of Puerto Rico for coordinated or consolidated pretrial proceedings will promote the just and efficient conduct of this litigation and will serve the convenience of the parties and their witnesses. We are satisfied that there are substantial common questions of fact relating to the cause of the crash to justify the transfer of all related actions to the District of Puerto Rico under Section 1407.
Certain plaintiffs urge that these proceedings be limited to discovery relating to liability and that issues relating to damages be left to the transferor courts. We will not so restrict the transferee judge for we think it more conducive to effective judicial management to allow him to determine which issues are appropriate for coordinated or consolidated pretrial proceedings and which should be reserved for further proceedings following remand.
We expect that discovery as to damages, if permitted at all, would be limited to "damage interrogatories" and we think it inconceivable, as was suggested during oral argument, that medical witnesses residing in Pennsylvania would be required in this or any similar situation to appear in a foreign jurisdiction for deposition purposes.
One of the plaintiffs, while favoring transfer under 1407, makes the unusual request that we provide in our order "for the payment by the United States Government of the necessary travel expenses incurred by counsel * * * in connection with pretrial discovery proceedings". Counsel for the plaintiff conceded at oral argument that in the absence of transfer he would undoubtedly be required to travel to Puerto Rico for depositions and other discovery in order to properly prepare his case for trial. It would seem then that his real concern is the possibility that frequent trips to Puerto Rico could be required for motion practice, pretrial conferences and other matters which would not be necessary if the actions are not transferred. Although we share counsels' concern over the high cost of travel to Puerto Rico, we are confident that pretrial proceedings will be scheduled and conducted so that such trips will be kept to the minimum necessary for the proper conduct of this multidistrict litigation.
Expenses can be reduced by following a procedure frequently employed in the Electrical Equipment Cases which permits an attorney who does attend depositions to make full use of them. Manual for Complex and Multidistrict Litigation, section 2.31. See, also, Footnote 3, infra.
Due to the already heavy docket in the District of Puerto Rico and the declared preference of both judges of that district not to participate in this litigation to avoid any possible conflict of interest, we have found it necessary to make arrangements for an outside judge to conduct these pretrial proceedings. With the typically fine cooperation of all involved, Judge Edward Weinfeld of the Southern District of New York has been temporarily designated to serve in the District of Puerto Rico for the purpose of conducting coordinated or consolidated pretrial proceedings in this multidistrict litigation.
Where it is appropriate to transfer litigation to a district with an unusually heavy caseload, it is frequently necessary to secure an outside judge to conduct coordinated or consolidated pretrial proceedings. See, for example, In re Seeburg-Commonwealth United Merger, 312 F. Supp. 909 and In re Silver Bridge Disaster, 311 F. Supp. 1345 (JPML 1970). It is then sometimes appropriate for the transferee judge to conduct certain proceedings in his own district. Such a procedure might be useful in this litigation.
It is therefore ordered that the actions listed on Schedule A pending in other districts be and they are hereby transferred to the District of Puerto Rico and with the written consent of that court all related actions are assigned to the Honorable Edward Weinfeld for coordinated or consolidated pretrial proceedings under section 1407.
SCHEDULE A
Southern District of New YorkGreat American Insurance Co., etc. v. United Civil Action States of America No. 70 Civ 1008
Eastern District of Pennsylvania
Donna Marie Jafolla, etc. v. United States of Civil Action America No. 70-608
Middle District of Pennsylvania
Michael J. Hudacek, etc. v. United States of Civil Action America No. 70-55
Michael J. Hudacek, etc. v. United States of Civil Action America No. 70-56
First National Bank of Wilkes-Barre, Pa. v. Civil Action United States of America No. 70-59
First National Bank of Wilkes-Barre, Pa. v. Civil Action United States of America No. 70-60
Michael J. Hudacek, etc. v. Puerto Rico Civil Action International Airlines, Inc., et al. No. 70-57
Michael J. Hudacek, etc. v. Puerto Rico Civil Action International Airlines, Inc., et al. No. 70-58
First National Bank of Wilkes-Barre, Pa. v. Puerto Rico International Airlines, Inc., et Civil Action al. No. 70-61
First National Bank of Wilkes-Barre, Pa. v. Puerto Rico International Airlines, Inc., et Civil Action al. No. 70-62
Michael J. Hudacek, etc. v. Puerto Rico Civil Action International Airlines, Inc., et al. No. 70-78
Michael J. Hudacek, etc. v. Puerto Rico Civil Action International Airlines, Inc., et al. No. 70-79
First National Bank of Wilkes-Barre, Pa. v. Puerto Rico International Airlines, Inc., et Civil Action al. No. 70-76
First National Bank of Wilkes-Barre, Pa. etc. v. Puerto Rico International Airlines, Inc., Civil Action et al. No. 70-77
District of Puerto Rico
Donna Marie Jafolla, etc. v. Puerto Rican Civil Action International Airlines, Inc., et al. No. 104-70
Donna Marie Jafolla, etc. v. Puerto Rican Civil Action International Airlines, Inc., et al. No. 105-70
Martin M. Pollock, etc. v. Puerto Rico Civil Action International Airlines, Inc., et al. No. 114-70
Yutaka Ohashi, etc. v. Puerto Rican Civil Action International Airlines, Inc., et al. No. 125-70
Clifford W. Bergere, etc. v. Puerto Rican Civil Action International Airlines, Inc., et al. No. 126-70
Evelyn M. Blanchard, etc. v. Puerto Rican Civil Action International Airlines, Inc., et al. No. 127-70
Edith Robinson Mueller v. Puerto Rico Civil Action International Airlines, Inc., et al. No. 139-70
Carlos F. Montilla, etc. v. United States of Civil Action America No. 102-70
Marie Teresa Pando Gonzalez, etc. v. United Civil Action States of America No. 236-70
First National Bank of Wilkes-Barre, Pa. v. Puerto Rico International Airlines, Inc., et Civil Action al. No. 120-70
First National Bank of Wilkes-Barre, Pa. v. Puerto Rico International Airlines, Inc., et Civil Action al. No. 121-70
Bienvenido Reyes, et al. v. United States Civil Action Aviation Underwriters, Inc. No. 152-70
Kirchoff v. Puerto Rico International Civil Action Airlines, and Great American Insurance Co. No. 161-70