Central District of California Continues Trend of Dismissing Multidistrict Litigation Arising Out of Foreign Aviation Accidents
On March 22, 2011, the Central District of California granted the defendants' forum non conveniens motion1 in the multidistrict litigation (MDL) arising out of the August 2008 accident of Spanair flight JK5022 during takeoff in Madrid.2 The aircraft, a McDonnell Douglas MD-82, was bound for Las Palmas de Gran Canaria, Spain. The action consolidated in the Central District of California consisted of cases originally filed in California, Illinois and Florida by 204 plaintiffs who represented 100 passengers and estates. The accident killed 154 people and injured 18 others, the majority of whom were citizens of Spain and none of whom were citizens of the United States.
The 116 wrongful death and personal injury suits before the court asserted negligence and strict products liability claims against McDonnell Douglas Corp., its successor (the Boeing Company) and various alleged component part manufacturers. Spanair, a domestic Spanish air carrier, was not a party. In seeking dismissal on the basis of forum non conveniens, the defendants stipulated to submit to the jurisdiction of the Spanish courts and emphasized the strong interest of Spain in the outcome of the litigation given that the aircraft operator, pilots and most victims were Spanish citizens, and that the accident occurred at a Spanish airport on Spanish soil.
Spain: An Adequate Alternative Forum Despite Possible Delay in Resolution of Criminal Proceedings
Arguing that Spain was not an adequate alternative forum,3 the plaintiffs contended that they faced an "immeasurable delay" because their civil suits would be indefinitely stayed pending resolution of criminal proceedings against two Spanair mechanics. Although the court found that the Spanish court might delay entering final judgment in the civil case pending the resolution of the criminal proceedings, it found that the Spanish forum remained available: "Indeed, though not desirable, complex litigation of the sort presented in this case could take nearly as long to resolve in this forum."4
The court also found without merit the plaintiffs' argument that if they sought compensation through the criminal proceedings they would not be able to pursue claims against the manufacturing defendants. The court noted that if the mechanics were found criminally liable and ordered to compensate the plaintiffs, then the plaintiffs would only be barred from "winning a windfall against double recovery, not that they will not be able to recover at all."5 And, as a practical matter, Spanair would ultimately be liable for offenses committed within the scope of the mechanics' employment and would then be able to sue the manufacturing defendants to establish joint and several liability.
Private Interest Factors Favored Dismissal
The court noted that both Spain and the U.S. were home to sets of witnesses. The U.S. was home to FAA and NTSB representatives and others who participated in the certification of the aircraft design, the investigation of a similar crash in Detroit, the defendants' efforts to notify operators of problems, and the design and certification of the Takeoff Warning System (TOWS). Spain was home to many liability witnesses, including Spanair employees, air traffic controllers, eyewitnesses, accident investigators, aviations regulators, rescue personnel, and damages witnesses, including the plaintiffs, relatives, friends, employers, healthcare providers and accountants.
The court found that although the comparative availability of witnesses may have been a neutral factor, the significant disparity in the cost of bringing witnesses to trial in the U.S. slightly favored dismissal because there were far fewer U.S.-based witnesses who would offer testimony relevant to the questions of liability common to all 204 plaintiffs. In contrast, damages testimony from family, friends and others would be necessary for each of the victims.
As with witnesses, the court concluded that physical evidence existed in the U.S. and Spain. Documents relating to the design and certification of the aircraft and TOWS and to the Detroit crash and investigation were in the U.S.; the accident site, aircraft wreckage, flight data and cockpit voice records, training records, flight operations records, maintenance records for the aircraft and component parts, information developed by the official investigation and regulatory documents were in Spain. Tipping the balance in favor of dismissal was that "any inconvenience in translating the technical data [located in the U.S.] is more than offset by the drawbacks associated with translating the cockpit voice recording" because "what happened in the cockpit immediately before the crash is of central importance."6
The defendants' apparent inability to implead Spanair in U.S. courts based on lack of personal jurisdiction also significantly favored dismissal. Spanair claimed that it did not own or operate any office in the U.S. and did not operate any passenger service into or out of the U.S. The court concluded that the defendants would suffer prejudice in having to try an "empty chair" – another factor favoring dismissal.
Public Interest Factors Strongly Favored Dismissal
Assessing the public interest factors, the court found: "The accident occurred in Spain as a Spanish airline with Spanish pilots and crew and carrying mostly Spanish passengers attempted to fly from one Spanish city to another. The significance of Spain's local interest cannot be disputed."7 The court also held it likely that Spanish law would apply to most of the plaintiffs' claims, and that because Spain's interest in the controversy "dwarfs" the U.S. interest, "the burden – in terms of time and money – that this case would impose on local courts and juries counsels in favor of dismissal."8
1 This is the most recent decision in a string of forum non conveniens dismissals in foreign aviation accident cases adjudicated in federal court. See, e.g., Tazoe v. Airbus S.A.S., 631 F3d.1321 (11th Cir. 2011); Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009), cert denied, 130 S. Ct. 3387 (2010); Clerides v. Boeing Co., 534 F.3d 623 (7th Cir. 2008); In re Air Crash Disaster Over Makassar Strait, Sulawesi, No. 09-cv-3805, 2011 WL 91037 (N.D. Ill. Jan. 11, 2011); In re Air Crash Over the Mid-Atlantic on June 1, 2009, __ F. Supp. 2d __, 2010 WL 3910354 (N.D. Cal. Oct. 4, 2010); Pettitt v. Boeing Company, No. 09 C 3709, 2010 WL 3861066 (N.D. Ill. Sept. 28, 2010); Esheva v. Siberia Airlines, 499 F. Supp. 2d 493 (S.D.N.Y. 2007); In re Air Crash Near Athens, Greece on Aug.14, 2005, 479 F. Supp. 2d 792, 804 (N.D. Ill. 2007); Van Schijndel v. Boeing Co., 434 F. Supp. 2d 766, 779 (C.D. Cal. 2006), aff'd, 263 Fed. Appx. 555 (9th Cir. 2008).
2 In re Air Crash at Madrid, Spain, on Aug. 20, 2008, 2011 WL 1058452 (C.D. Cal. Mar. 22, 2011).
3 The court employed the traditional forum non conveniens analysis to determine whether an available and adequate alternative forum existed, and, if so, whether the private and public interests rendered the alternative forum more convenient.