Before the Court is the Supplemental Motion to Dismiss Under the Doctrine of Forum Non Conveniens (Doc. 95) filed by defendant Cessna Aircraft Co. Defendants Teledyne, Inc. and Hanlon & Wilson Co. filed their own motions to dismiss (Docs. 102 and 103, respectively), wherein they joined Cessna's motion. For the reasons below, we will deny the motions to dismiss.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
Plaintiff Graeme Macarthur Lacey is an Australian citizen who suffered severe burns as a result of a plane crash in Invermere, British Columbia, Canada on July 20, 1985. The defendants are Cessna Aircraft Co. (Cessna), the manufacturer of the plane; Teledyne, Inc. (Teledyne), the manufacturer of the plane's engines; and Hanlon & Wilson Co. (Hanlon & Wilson), the manufacturer of the aircraft's exhaust system. Because the facts of this case have been recited in previous opinions,
here we only outline the essential facts and procedural history.
This case was originally assigned to the late Honorable Gerald Weber who granted the defendants' original motion under the doctrine of forum non conveniens more than seven years ago. Lacey v. Cessna Aircraft Co., et al., 674 F. Supp. 10 (W.D. Pa. 1987). The plaintiff appealed, and the United States Court of Appeals for the Third Circuit vacated and remanded the case for further consideration. Lacey v. Cessna Aircraft Co., et al., 862 F.2d 38 (3d Cir. 1988). The court of appeals held that the defendants had not submitted sufficient evidence to facilitate a proper forum non conveniens analysis, and that the district court did not adequately consider the private and public interest factors as formulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947) and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981).
After Judge Weber's death, the case was transferred to the undersigned. In an opinion dated April 27, 1990, we considered the factors relevant to a forum non conveniens analysis as set forth in Gulf Oil and Piper, and concluded that the complaint indeed should be dismissed on that basis. Our decision was conditioned upon the defendants' consent to make available to the plaintiff in British Columbia all relevant witnesses and documents within their control.
Again the plaintiff appealed, arguing that our forum non conveniens analysis was flawed because we failed to indicate the precise quantum of deference we attributed to the plaintiff's forum choice, failed to sufficiently entangle ourselves in the facts of the case, and neglected to analyze properly the private and public interest factors set forth in Gulf Oil and Piper. The court of appeals rejected most of the plaintiff's arguments, but agreed that we had failed to analyze properly the relative ease of access to sources of proof, the application of foreign law, and any obstacles to a fair trial in British Columbia. Lacey v. Cessna Aircraft Co., et al., 932 F.2d 170 (3d Cir. 1991) (Lacey II).
The court in Lacey II was particularly concerned about a statement by Hanlon & Wilson's president that his company no longer possessed documentation concerning its exhaust business because it had sold its entire exhaust business to Wall Colmonoy Corp. (Wall), an Oklahoma corporation. Lacey II, 932 F.2d at 183. According to the court of appeals, if this was so, the defendants' promise to provide the plaintiff with all relevant witnesses and documents within their control would not ensure the plaintiff access to critical sources to prove his claim that the exhaust system was defectively designed.
The Lacey II court also expressed concern that due to the passage of time since the design of the exhaust system, and because of employee flux, many potentially relevant witnesses may no longer be employed by the defendants, and thus beyond their control for discovery purposes. Id. at 183. The court, unpersuaded by Cessna's assertions at oral argument that it possessed sufficient documentation and witnesses to satisfy the plaintiff's needs, noted that this is "something the district court should examine." Id. at 184. The court concluded that we improperly assumed that evidence essential to the plaintiff's products liability claim was still in the control of the defendants. Id.
The court instructed us to "identify generically what sources of proof are likely to be critical to Lacey's cause of action and then ascertain whether Lacey will enjoy access to those sources of proof at trial if his claim is litigated in British Columbia." Id. If the plaintiff will not have access to essential evidence at trial in British Columbia, we must deny the defendant's motions to dismiss. The court then evaluated our conclusion that British Columbia affords the plaintiff ample opportunity to obtain relevant information, and offered that this conclusion would be unfounded if we determined on remand that sources of proof essential to the plaintiff's products liability claim were not within the control of the defendants. Id. at 185-86.
In summary, the court of appeals in Lacey II stated that on remand we must reasonably conclude that the plaintiff "would have access to essential sources of proof in British Columbia" in order to grant the defendants' motions to dismiss. Id. at 189. If we determine that essential evidence is in the possession of third parties in the United States, we must determine whether the plaintiff would have access to such evidence at trial in British Columbia. If we fairly conclude that the plaintiff will have access to evidence in British Columbia sufficient to support his products liability action, we may dismiss this case on forum non conveniens grounds. Id.
A. Activities by the Parties Since Lacey II
In response to the most recent remand from the court of appeals in Lacey II, we held a status conference on August 7, 1991, and ordered the parties to brief the forum non conveniens issue in light of the appellate ruling. On September 26, 1991, the plaintiff filed his "Request to Defendants to Make Known Sources of Information Pursuant to Remand from the Third Circuit" (Plf.'s Request), wherein he listed the sources of proof that he considered "critical" to his cause of action. Plf.'s Request at 5-6. The defendants responded by October 25, 1991, and on November 22, 1991, the plaintiff filed his "Reply to Defendants' Responses to Request to Make Known Critical Sources of Proof" (Plf.'s Reply). The plaintiff contends that the defendants have failed to establish that he would have access in a British Columbia forum to the following essential sources of proof:
(1) Former employees of the three defendants who have knowledge of the design and redesign of the exhaust system;