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POPKIN v. EASTERN AIR LINES

April 6, 1962

Sidney W. POPKIN
v.
EASTERN AIR LINES, INC., and Lockheed Aircraft Corp., and General Motors Corporation and succeeding cases captioned in the orders of 10/17/61 (DocumentNo. 24 in C.A. 28664) and 11/1/61 (Document No. 7 in C.A. 29724), except Civil Actions Nos.30390 and 30391



The opinion of the court was delivered by: DUSEN

These 55 cases, *fn1" involving fatal and, as to three plaintiffs, non-fatal injuries suffered when an Electra airplane manufactured by Lockheed, having engines made by General Motors, and owned and operated by Eastern, crashed approximately one minute after take-off in Boston Harbor on October 4, 1960, are before the court on Motions to Transfer under 28 U.S.C.A. § 1404(a). There are 114 similar cases pending in the United States District Court for the District of Massachusetts (see Document No. 30 in C.A. 30078). The record in these cases (see, particularly, statements of Lee S. Kreindler, Esq. at the argument) indicates that the primary basis for liability on which the plaintiffs presently rely is alleged fault of the defendants resulting in bird ingestion by the turbo-prop engines of the plane involved in this suit, as well as in engines of other planes using the Logan International Airport, Boston, at about the time of the accident.

In Jurgelis v. Southern Motors Express, 169 F.Supp. 345 (E.D.Pa.1959), this court said:

 'In Norwood v. Kirkpatrick, 1955, 349 U.S. 29, 75 S. Ct. 544, 99 L. Ed. 789, the Supreme Court, in discussing the relation of 28 U.S.C.A. § 1404(a) to the doctrine of forum non conveniens as recognized by the Supreme Court in Gulf Oil Corp. v. Gilbert, 1946, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055, said at page 32 of 349 U.S. (29), at page 546 of 75 S. Ct. (545):

 "* * *, we believe that Congress, by the term 'for the convenience of parties and witnesses, in the interest of justice,' intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff's choice of forum is not to be considered, but only that the discretion to be exercised is broader.'

 'It appears, therefore, that under the present state of the law, the factors to be considered by a court in determining whether or not to transfer the action under § 1404(a) are established by the Gulf Oil Corp. case, *fn2" and the degree of discretion to be exercised by the court is established by the Norwood case.'

 The last sentence quoted above was approved by Chief Judge Biggs, sitting specially in this court, in Medich v. American Oil Company, 177 F.Supp. 682, 683 (E.D.Pa.1959). See, also, All States Freight v. Modarelli, 196 F.2d 1010 (3rd Cir., 1952), where the court said at page 1011:

 'The statute limits the privilege of the plaintiffs to have his lawsuit tried in the forum of his choosing if he can there get jurisdiction over the defendant. The purpose of the limitation is clearly to make the inevitably uncomfortable (for the litigant) judicial process cheaper and more convenient and, if possible, more prompt.'

 After consideration of the record in these cases, the undersigned has concluded that transfer is required under 28 U.S.C.A. § 1404(a), as follows:

 I. Convenience of the Parties

 II. Convenience of Witnesses

 The record makes clear that the District of Massachusetts will be more convenient for the presently known witnesses on the issues of liability and of degree of culpability of the defendants. *fn4" The Collins Affidavit (Document No. 31 in C.A. 28664) alleges that (a) all but six of the 47 eye witnesses to the accident known to General Motors reside in the District of Massachusetts and within 25 miles of Boston (par. 12); *fn5" (b) four of ten survivors of the crash reside in the District of Massachusetts and within 60 miles of the center of Boston; *fn6" (c) four employees of the Logan Airport who prepared the plane for flight reside in the vicinity of Boston; (d) seven operators of the control tower at Logan International Airport, who were eye witnesses to the aircraft's flight and crash and who would know the time of the take-off and crash, reside within 25 miles of center city Boston (see par. 15 of Document No. 31 in C.A. 28664); (e) all but one of the six experts who first examined the bodies of the dead birds reside within twelve miles of center city Boston and the Sixth such expert resides in New Hampshire, approximately 60 miles from Boston (see par. 17 of Document No. 31 in C.A. 28664); and (f) five other potential witnesses having knowledge of the presence of birds at the airport, and some of whom discovered dead birds at the airport, reside within 25 miles of Boston (see pars. 16 and 18 of Document No. 31 in C.A. 28664). *fn7" Also, it is clear that it will be more convenient for such witnesses if there is to be one trial, rather than several, and if the discovery can be conducted under the supervision of one court. *fn8" Cf. MacAlister v. Guterma, 263 F.2d 65, 68-70 (2nd Cir., 1958).

 Plaintiffs have not filed any affidavits contradicting the above sworn allegations, but have emphasized, generally, without listing any additional specific witnesses in their affidavits (except for six individuals listed without specifying the area of their testimony in Document No. 35 in C.A. 28741 and five individuals listed as damage witnesses for one plaintiff in Document No. 29 in C.A. 30078), that most of their compensatory damage witnesses come from this district or near it. *fn9" Experience in this and other Districts indicates that, once the issues of liability have been determined, relatively few of a large group of cases such as these, resulting from one accident, go to trial on the damage issues. Furthermore, as indicated below, there are several legal hurdles the personal representative plaintiffs have to overcome before compensatory damages become pertinent in their cases. *fn10"

 Some plaintiffs also stated in their affidavits that they seek to establish that the accident occurred as the result of negligent design and testing of the engines by General Motors, negligent design and testing of the aircraft by Lockheed, negligent testing of the aircraft, as well as negligent training and physical examinations of the flight personnel, by Eastern, and negligence of the Government in execution of its responsibility for flight safety. See par. 8 of Document No. 29 in C.A. 30078. At the argument, it was admitted that plaintiffs hoped that the Government agency investigating the crash would be able to show faulty design and testing of the aircraft and its engines, but no definite finding to this effect has been made over 18 months after the crash. Hence, there is nothing specific on the record to show that any large number of witnesses from outside the Boston area, and for whom the transferor District would be more convenient than the transferee District, will be required for the trial of the above-mentioned issues of liability and degree of culpability. Employees of the defendants from California and Indiana, referred to at page 10 of the Kreindler Affidavit, being Document No. 12 in C.A. 29724, would not be substantially inconvenienced any more by a trial in Philadelphia than one in Boston, *fn11" but it is clear that they will be inconvenienced by having to testify at trials in both places, as opposed to one trial in Boston (see footnote 8 above, showing that the transferee District is the only place where there can be a single trial.) Employees of the Civil Aeronautics Board, Bureau of Safety, will similarly have to testify in the District of Massachusetts in any event and, if the transfer of these 55 cases is denied, they will have to attend another trial in this District.

 III. The Interest of Justice

 The interest of justice requires the transfer of these cases to the transferee District for these reasons, among others: *fn8"

 (1) Consolidation of all the cases arising from this accident for purposes of proceedings before trial is likely to procure fairer and more orderly trials for all litigants and save needless time and expense for the public, including jurors, and other litigants whose cases are awaiting trial.

 See MacAlister v. Guterma, supra, 263 F.2d at 68-70; O'Donnell v. Watson Bros. Transportation Company, 183 F.Supp. 577 (N.D.Ill.1960); and cases cited in those cases. With reference to the argument in the attached letter of January 11, 1962 (based on a letter from the Clerk of the Massachusetts District dated January 9, 1962, which is also attached), that 'there is nothing to be gained administratively by the transfer of these matters to Boston,' the United States District Court for the District of Massachusetts has informed the undersigned that all the cases arising out of this accident have been assigned to one judge, who is handling all such cases for purposes of proceedings prior to trial and will consider possibilities of severance of issues for trial, as well as consolidation for trial, at the appropriate time. ...


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