consider the enumerated
Restatement factors according to their importance to the alleged
negligence of the air traffic controllers in Indiana and of the D.C.
It seems clear that Kentucky has "little connection to the legal
action" concerning the FTCA claims against the United States's air
traffic controllers and chart publishers. Although the deaths occurred in
Kentucky, the pilot's negligence may have occurred in Kentucky, and
Kentucky was the intended destination of the plane that day, none of
these facts have any bearing on whether the United States was negligent.
In Hubbard, 515 N.E.2d at 1074, Illinois was the site of a death
allegedly caused by a faulty mechanical lift, of the inquest, and of
decedent's employment at the time of death, as well as the provider of
workmen's compensation to decedent's family. However, these factors were
insignificant" since "none . . . relates to the wrongful death action,"
which was premised on "two theories of recovery relat[ing] to the
manufacture of the lift in Indiana." Id. at 1074; see also Jean v.
Dugan, 814 F. Supp. 1401, 1409-10 (N.D. Ind. 1993) (site of alleged
wrongfully terminated was Illinois, but Illinois had "little significant
connection to this legal action because nearly every action leading up to
[plaintiff]'s allegedly tortious termination occurred in Indiana."), aff'd
on other grounds, 20 F.3d 255 (7th Cir. 1994) (choice of law as to
wrongful termination claims not contested on appeal). Here, no element of
the tort allegedly committed by the United States occurred in Kentucky,
nor do any of the other connections of Kentucky have any bearing upon
those alleged torts.
Thus, the court turns to consideration of other factors, including
those specified in Hubbard. As to "the place where the conduct causing
the injury occurred," the alleged negligence of the United States
occurred in both Indiana and D.C., but the conduct most directly
affecting the plane's landing clearly occurred in Indiana. Furthermore,
the Indiana controllers were the only governmental actors with direct
contact with, and who had immediate supervision and control over, the
pilot and the plane. As to "the residence or place of business of the
parties," they are various — Indiana (Plaintiff Schalliol, and
perhaps the place of business of the United States along with D.C.),
Pennsylvania (three of four Simon Plaintiffs), New York (fourth Simon
Plaintiff), Delaware (Defendant Fare/Cross-Plaintiff Fare and Defendant
Hart Delaware),*fn32 and all states or no state (residency of the United
States).*fn33 Although the sheer number of contacts is greatest in
Pennsylvania, all three contacts are those of representatives of a single
estate plaintiff. As to the place where the relationship is "centered,"
the decedents' relationship to the government was based on the fact that
as plane travelers they were subject to the supervision of air traffic
controllers and guided by the government's air traffic publications, so
that any relationship arguably was centered, if anywhere at all, to the
regulatory acts in Indiana or D.C., or perhaps to the passengers'
employers in Pennsylvania or Delaware.*fn34,*fn35 Finally, while the
factors considers the domicile of the parties and not
of the decedents, Plaintiff Schalliol and the Simon Plaintiffs correctly
argue that a state has an interest in the compensation of its residents'
injuries, see. e.g., In re Aircrash Disaster Near Roselawn, Ind. on Oct.
31, 1994, 948 F. Supp. 747, 758 (N.D. Ill. 1996) (deciding choice of law
as to compensatory damages alone), and here two decedents, Passenger Hart
and Passenger Schalliol, were residents of Pennsylvania.*fn36 However,
liability as well as compensation is at stake in this choice of law
determination, and the Hubbard/Restatement factors point to Indiana as
the place of the immediate injury-causing conduct, as the domicile of
Plaintiff Schalliol, and as the possible place of business of the United
States in the context of its control and supervision over the plane's
landing. Although it is a close question, the court finds that Indiana
bears the "edge" as the jurisdiction with the most significant contacts
to the negligence claims against the United States. See Cutshall v. Ford
Motor Co., 719 F. Supp. 782, 784 (S.D. Ind. 1989) (under Indiana law,
Missouri law had most significant contacts where it was the place of
tort, place of business of defendant, and place of direct contact between
plaintiff and defendant; Indiana law did not apply, although it was
residence of tort plaintiffs and also of tort victim's employer, which
was responsible for bringing tort victim and defendant together).
This court further certifies this issue for immediate appeal pursuant
to 28 U.S.C. § 1292 (b), which requires that 1) the issue involve a
controlling question of law 2) as to which there is substantial grounds
for difference of opinion, and that 3) an immediate appeal of this order
may materially advance the ultimate termination of the litigation. See
28 U.S.C. § 1292 (b); Smith v. Scripto-Tokai Corp., 178 F. Supp.2d 477,
479 (W.D. Pa. 2001). The choice of law determination is a controlling
question of law in that reversal of this decision by the Court of Appeals
could result in the application of different jurisdiction's substantive
law on the primary issues of liability and/or damages. See Trotter v.
Perdue Farms, Inc., 168 F. Supp.2d 277, 288 (D. Del. 2001) ("`A
controlling question of law must encompass at the very least every order
which, if erroneous, would be reversible error on final appeal.'")
(citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en
banc)). Additionally, there is substantial ground for a difference of
opinion as to the appropriate application of the complex, multi-step
analyses of Gould and Hubbard. Furthermore, an immediate appeal may
materially advance the ultimate termination of the litigation by
providing the parties with certainty as to the scope of possible financial
exposure if the case were to proceed to trial, which differs greatly
depending on whether Indiana or Pennsylvania law is applied.
The proceedings in this court are stayed.
An appropriate Order follows.
AND NOW, this 13 day of June, 2002, it is ORDERED as follows:
1. Upon consideration of the United States' Motion for
Determination of Choice of Law in Civ. No. 01-224,
and the responses and reply thereto, the motion is
2. Upon consideration of the United States' Motion for
Determination of Choice of Law in Civ. No.
01-5671, and the responses thereto, the motion is
3. The issue of the choice of law is certified for
immediate appeal. 28 U.S.C. § 1292 (b)
(conferring discretion on the Court of Appeals to
exercise jurisdiction if application is made within
ten days after the entry of the order); and
4. The proceedings in this court are stayed pending