Julian, who has been assigned the cases in Boston, would do if we granted the motions to transfer. We have no idea whether he would consolidate these cases merely on the issue of liability, whether he would determine that two trials are necessary or whether he would try all the cases together on liability and damages. We have concluded that he would not consolidate. A rather narrow possibility of only one trial is not enough combined with the other factors to cause us to exercise our discretion to transfer.
At this time, we feel that consolidation will not result for the following reasons:
1. The applicable law in these cases as to damages will in all likelihood differ from those in Boston.
2. The applicable law as to liability as against everyone but Eastern may differ.
3. Pennsylvania law as to liability of a common carrier and its duties to a passenger may apply to these cases and may vary substantially from that in Massachusetts.
4. Quasi-procedural matters such as the law of presumptions, questions of evidence, burden of proof and sufficiency of evidence for the jury probably under the aegis of the Barrack rule would have to be referred by the transferee forum to the rules of the transferor forum. We do not know if these rules substantially vary in the two forums.
5. Judge Julian in a consolidated and protracted case would be faced with the probability of objections by both sides in the Philadelphia cases that the applicable law is different from that in the District of Massachusetts.
6. Judge Julian would in order to consolidate these cases with those in Boston be forced to delay the trial in Boston for an indefinite time and further delay the plaintiffs. He would be faced with the task of co-ordinating these cases for pretrial procedures, determining a new method of trial and giving plaintiffs an opportunity to complete discovery which is almost completed in Boston.
7. Since the ultimate issue in Massachusetts death cases is the culpability of defendants, defendant could introduce evidence in a consolidated trial which would not be relevant in Pennsylvania death cases, thereby prejudicing plaintiffs.
We obviously have no power to compel consolidation of these cases with those in Boston. Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267, 273 (3rd Cir. 1962). This is a matter in the discretion of the District Court of Massachusetts, and we have no indications that it would consolidate. We have no power further to order that District how to try these cases. Moreover, the First Circuit courts may very well take the position that the same jury must try the case both as to liability and damages which of course would result in substantial prejudice to plaintiffs in these cases who can recover substantial compensatory damages in wrongful death cases. United Air Lines, Inc. v. Wiener, 286 F.2d 302 (9th Cir. 1961); cert. den. 366 U.S. 924, 81 S. Ct. 1352, 6 L. Ed. 2d 384. Boston plaintiffs are limited to a recovery of $20,000 and may possibly fail to recover that sum. Frankly, we do not see a great advantage to consolidation even on the issues of liability because of the number and reputation of plaintiffs' counsel in Philadelphia.
Barrack suggested reconsideration also in light of the fact that were the Pennsylvania law of compensatory damages to apply, plaintiffs would be more dependent on Pennsylvania witnesses. In the wake of Griffith, there is little doubt that as least as regards Eastern,
plaintiffs will be allowed to recover compensatory damages. Considering that there are presently over 20 decedents' estates involved in this mass litigation in Philadelphia, it is unnecessary for plaintiffs to show that they will be heavily dependent on a great number of local witnesses to show damages.
Defendants contend that generally such a large number of cases do not go to trial on the question of damages. While this may be so, it does not indicate that all of these cases will not go to trial. Moreover, to use the same argument against defendants, it seems just as likely that once a verdict is reached in Boston as to those cases, these cases will be settled without a trial, thus completely undermining the position of the defendants.
The last point which the Supreme Court considered relevant was the state of doubt as to the conflicts rules of Pennsylvania and the applicable substantive law. First, they suggested that a Pennsylvania federal judge would be better able to untangle problems in conflicts of law and secondly that the chosen forum should be at home with the applicable substantive law. Both facets fall in favor of plaintiffs at this time. It is still unclear what effect Griffith has on the instant litigation. The rule enunciated in Griffith is merely "the beginning of the development of a workable, fair and flexible approach to choice of law which will become more certain as it is tested and further refined when applied to specific cases before our courts." 416 Pa. at 22, 203 A.2d at 806.
Defendant's point that these cases should be transferred to Massachusetts because there has been extensive discovery conducted there while there has been little in this District simply fails to meet the issue. Judge Julian has no more power to limit these plaintiffs in discovery than we have. In fact, plaintiffs have generally agreed that they will make extensive use of the Boston discovery and that not a great deal more will be required. Moreover, as it seems that a trial will be held in Boston before one is possible here, we will have the benefit of rulings made by Judge Julian and of stipulations by counsel which will greatly facilitate a trial here if one is necessary.
Consolidation as a factor in transfer has been considered by several courts and has been rejected as one strong enough to compel transfer by itself, even when consolidation was considered more likely than in this case. See Cressman v. United Air Lines, 158 F. Supp. 404, 407 (S.D.N.Y.1958), Schindelheim v. Braniff Airways, Inc., 202 F. Supp. 313 (S.D.N.Y.1962), and United Air Lines, Inc. v. United States, 192 F. Supp. 796 (D.Del.1961). The motions granted for the purposes of consolidation in the electrical anti-trust cases present an entirely different problem. These cases involved a series of cases involving thousands of claims and spread throughout the entire federal system. A coordinated program was essential to prevent a complete deluge of the federal court. See I-T-E Circuit Breaker Co. v. Becker, 343 F.2d 361 (8th Cir. 1965).
A motion to transfer is not susceptible to an exact weighing. The relevant factors remain too vague in application and the value to which they are entitled is at best a calculated guess. The court must make a particularized judgment which may in the long run prove to be erroneous. However, since District Judges have not been endowed with Solomonic wisdom, we must be content with an inexact balancing.
In summary, the defendants allege that a transfer is warranted because of the inconvenience to liability witnesses, because of the possibility of a consolidation and because of inability in this forum to bring in the Massachusetts Port Authority among other factors, including a uniform decision. All of these factors we believe are very relevant. However, in this case we must conclude that they are not sufficient to overcome the fact that plaintiffs will rely heavily on compensatory damage witnesses, that the controlling conflicts law will be that of this state, that the controlling procedure will probably be that of this forum and that the plaintiffs are residents of this forum. The latter circumstance itself coupled with less inconvenience than present in this case has been enough to warrant courts in refusing to transfer similar cases.
We have considered all of the points raised by the arguments of defendants and believe that we have weighed them properly in determining not to transfer.
And now, this 25th day of March, 1966, it is ordered that any previous order to transfer these cases to the District Court of Massachusetts is vacated, and it is further ordered that all motions to transfer these cases to the District Court of Massachusetts are denied.