NATO-SOFA Treaty, Boeing is entitled to a credit in the cases sub judice for any payment made to foreign nationals through the administrative proceedings. The Treaty itself does not provide for this asserted "credit" nor does case law establish such a "credit" in the form of contribution or indemnity.
More importantly, however, is the question of what interest would be furthered by applying the West German law.
If, in seeking to limit compensation to injured parties, West Germany is protecting resident defendants from excessive liability, the policy would not be furthered in this situation. Boeing is not a West German defendant.
The plaintiffs are correct in arguing that these cases essentially present a "false conflict" on the liability issue. The defendant has made no conflicts of law argument in support of its contention that West German law, or any law other than Pennsylvania law, should be applied. Viewed through interest analysis, it becomes clear that the interest of no other jurisdiction would be furthered by applying a law granting less protection to the plaintiffs. On the other hand, the interests articulated by the Pennsylvania courts in seeking to hold its manufacturers as guarantors of their products' safety would certainly be furthered by application of its law. Holding the defendant to a higher level of liability presents little problem in this case because the court would simply be applying the law of the state where the defendant's conduct occurred.
In Cipolla, supra, the Supreme Court of Pennsylvania determined that a defendant from a defendant-protecting state, acting within its own state, should be permitted to rely on its home law. The defendant in this case is from a plaintiff-protecting state. The plaintiffs are merely seeking to apply the laws of the defendants' state. Professor Cavers, whose theory is relied upon to some extent by the Pennsylvania courts, would apparently agree that it is not "unprincipled or a denial of 'conflicts justice'" for a state to "adopt a choice-of-law principle preferring its own standards of liability and financial protection when the duties these impose on its citizens are higher than those in the states to which they may resort, regardless of who may be the victims of their misconduct." Cavers, Cipolla and Conflicts Justice, 9 Duq.L. Rev. 360, 368-369 (1971). In Broome v. Antlers' Hunting Club, 595 F.2d at 925, the Third Circuit predicted that Pennsylvania courts would adopt such a principle.
The Pennsylvania principle of full compensation and placing the risk of loss on its manufacturers would be furthered by applying Pennsylvania liability law to all of the plaintiffs and applying Pennsylvania damage law to the foreign plaintiffs. In those cases where a plaintiff is from a state giving lower protection under its damages law than Pennsylvania, the state of conduct of the defendant, the court will apply the higher Pennsylvania protection. The interests of deterrence and retribution, as set out in Pennsylvania strict liability cases, would thereby be furthered without impairment to another state's interest.
It is also not unfair, arbitrary or a denial of the equal protection of the laws to hold a defendant manufacturer to the liability and damage laws of its own state, when acting in its own state, where that law provides greater protection to the plaintiff than the plaintiff's own state.
The court concludes that Pennsylvania liability law will govern the liability issues in these cases. The court further determines that in those cases where Pennsylvania compensatory damages law provides greater protection than does the damages law of another jurisdiction, Pennsylvania law will be applied. West German law is therefore rejected as the law to be applied to the foreign cases.
In only one case has the court been presented with a jurisdiction's law that would provide greater protection under the Wrongful Death Statute than does Pennsylvania. As noted in footnote 6, in Scott v. Boeing, C.A. No. 83-0970, the parents of the decedent are entitled, under Michigan law, to present to the jury evidence of loss of companionship and society due to the death of their son. The Michigan Supreme Court has noted that the state's Legislature has adopted the judicially announced view
that life has value not only to the person who has been deprived of its enjoyment by a wrongful death but to the spouse and next of kin who have lost those benefits of association we summarize in the word 'companionship.' 383 Mich.  299, 174 N.W.2d 836.
Crystal v. Hubbard, 414 Mich. 297, 324 N.W.2d 869, 879 (1982) (citing Breckon v. Franklin Fuel Co., 383 Mich. 251, 299, 174 N.W.2d 836 (1970) (dissenting opinion)).
The court will grant the motion of the decedent's parents to intervene in the Scott suit to give them the opportunity to present to the court their argument as to why the Michigan Wrongful Death Statute should be applied to the Scott case.
Although the court has determined that application of Pennsylvania damages law is proper in these cases when that law provides greater protection, it makes no determination as to which law shall be applied if another jurisdiction provides greater compensatory relief. Because the trial will be on the liability issue first, the court leaves that determination to the time of trial. The parties are invited to present to the court their briefs on the issue of applicable domestic damages law in those cases where a jurisdiction would provide greater compensatory relief than Pennsylvania law.
Finally, it is clear that consolidation is warranted on the issue of liability in that the actions involve common questions of law or fact. Rule 43 of the Federal Rules of Civil Procedure.
The court hereby ORDERS:
1. The cases shall be consolidated for the purpose of determining the issue of liability.
2. The law of Pennsylvania shall apply to all cases on the issue of liability.
3. The law of Pennsylvania shall apply to all of the issues in the cases involving the surviving relatives of European citizens.
4. The court shall determine applicable law on the issue of damages in the cases involving the surviving relatives of American citizens at the time of trial in accordance with the accompanying Memorandum Opinion.
5. The motion of Mr. and Mrs. William F. Scott to intervene in the action Barbara Scott v. The Boeing Company, C.A. No. 83-0970 is GRANTED for the limited issue of damages and applicable law.
IT IS SO ORDERED.