IN RE: Multidistrict Civil Actions Arising Involving the Air Crash Disaster Near Dayton, Ohio on March 9, 1967

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Bw Pde 798oy 8 JUDICIAL PANEL 34 Dr
MULTIDISTRICT LITiGATION — [RRSSENRCE .
FILED Foi
THE JUDICIAL PANEL MAR 23 1970 FS
MULTIDISTRICT LITIGATION EATRICIA D. HOARD }
CLERK OF THE PANEL
MULTIDISTRICT CIVIL ACTIONS INVOLVING )
THE AIR CRASH DISASTER NEAR DAYTON, OHIO } DOCKET NO. 38 a.
ON MARCH 9, 1967 ) SE
OPINION AND ORDER EE
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
EDWARD WEINFELD, EDWIN A. ROBSON,* WILLIAM H. BECKER, JOSEPH
S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL = .
PER CURIAM EE
This multidistrict litigation presently encompasses
1/ oo
thirteen actions pending in three federal district courts.” he
They all result from a mid-air collision between a small on
private plane and a Trans World Airlines jetliner. All or
twenty-six persons aboard the two planes were killed. ERE
On February 9, 1970 an order was directed to the parties Co
to show cause why the actions listed on Schedule A should oo .
not be transferred to a single district for coordinated or IRENE
consolidated pretrial proceedings under 28 U.S.C. § 1407. B }
Some of the parties declined to respond to the show cause order
or to appear	at the February 27, 1970 hearing in New York City KE
* Although Judge Robson did not attend the hearing he has - =
with the consent of all parties participated in this decision. Cs
1/ We were advised at the hearing that there are eleven related
actions pending in state courts in Illinois.

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® ,
but of those appearing, several plaintiffs and the Tann company?’
opposed transfer under § 1407 while Trans World Airlines
and the United States supported transfer.
None of the parties deny the existence of common questions
of fact nor do any dispute the necessity for some type of
coordinated or consolidated pretrial proceedings. Those
opposing transfer under § 1407 assert that informal coordination
of pretrial proceedings has been very satisfactory and has led
to substantial discovery and resulted in many settlements.
Those favoring transfer concede that cooperation between all
counsel has generally been good and that pretrial proceedings
® have progressed rather smoothly but they urge that transfer
for coordinated or consolidated pretrial proceedings under
§ 1407 would further promote the just and efficient conduct of
these actions and would serve the parties and their witnesses
by providing a single forum for the supervision and control
of pretrial proceedings. Since discovery as to liability will
not be completed in the immediate future we agree that transfer
is appropriate at this time.
All agree that if there is to be a transfer, the Southern
District of Ohio should be designated as the transferee court.
2/ The owner of the small aircraft involved in the collision.
o

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® = 3 -
We have consistently held that the district containing the
situs of the crash is generally the most appropriate
transferee district for litigation of this type. In re
Fairland, Indiana Air Disaster Litigation, ___F.Supp.	_
(JPML February 10, 1970) and the cases cited therein. In
addition to the fact that the crash occurred in the Southern
District of Ohio the vast majority of the pending actions
were filed in or have been transferred to that district
under 28 U.S.C. § 1404(a). All of these actions have been
assigned to a single judge -- Chief Judge Carl A. Weinman.
® The transfer of the remaining actions to the Southern District
of Ohio and their assignment to Chief Judge Weinman for
coordinated or consolidated pretrial proceedings will insure
that discovery which has already taken place will not be
duplicated and that future pretrial proceedings will be
conducted expeditiously and efficiently.
IT IS THEREFORE ORDERED that the actions listed on Schedule A
pending in other districts are hereby transferred to the
Southern District of Ohio, Dayton Division, and with the
written consent of that court which has been filed with the
Clerk of the Panel, they are hereby assigned to the Honorable
Carl A. Weinman for coordinated or consolidated pretrial pro-
ceedings with the related actions now pending in that court.
@

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DOCKET NO. 38 SCHEDULE A
SOUTHERN DISTRICT OF OHIO
Vera F. Downey, etc. v. Trans World Airlines, 1lnc., Civil Action
et al. No. 3521
Pittsburgh National Bank, etc. v. Trans World Civil Action
Airlines, Inc., et al. No. 3563
Virginia Bauer, etc. v. United States of Civil Action
America No. 3640
Dennis Charles Markley, etc. v. United States Civil Action
of America No. 3641
Ethel A. Strobel, etc. v. United States of Civil Action
America No. 3639
Sue A. Clough, etc. v. Tann Company Civil Action
No. 3656
Joan G. Schaefer, etc. wv. United States of Civil Action
America No. 3670
Q. M. Palmer, etc. v. Trans World Civil Action: Airlines, Inc., et al. No. 3777
Julia E. Wilds, etc. v. United States of Civil Action
America No. 3782
EASTERN DISTRICT OF MICHIGAN
Dorothy Burgstahler, etc. v. Trans World Airlines, Civil Action
Inc. No. 32039
Eliner M. Palmer, etc. v. Herman Tann d/b/a Tann Civil Action
Company, et al. No. 30816
Tann Company Vv. United States of America Civil Action
No. 32842
SOUTHERN DISTRICT OF NEW YORK
George H. Humphries, etc. v. United States of Civil Action
America No. 69 Civ 3023

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IN RE MULTIDISTRICT CIVIL ACTIONS INVOLVING THE AIR So
CRASH DISASTER NEAR DAYTON, OHIO,	ON MARCH 9, 1967 :
Ceorge H. Humphreys, etc. v. Herman Tann ) .
d/b/a Tann Co., et al., (E.D. Michigan } DOCKET NO. 38 : We. iC.A. No. 32421), S.D..Ohio, Civil Action ) . i olin
No. 3834ML(F) oo : : Loe Th
h OPINION AND ORDER ST
BEFORE ALFRED P. MURRAH,” CHAIRMAN, AND JOHN MINOR WISDOM,
EDWARD WEINFELD, EDWIN	A. ROBSON; WILLIAM H. BECKER,
JOSEPH S. LORD, III*, AND STANLEY A. WEIGEL*, JUDGES OF : :
THE PANEL . Sa : x SE
oC PER CURIAM EE :
. The above-captioned action is one of several arising Co :
from a mid-air aircraft collision near Dayton, Ohio, on .
March 9, 1967. The actions in this litigation were trans- :
: ferred by the Panel to the’ Southern District of ‘Ohio and i
assigned to the Honorable Carl A. Weinman for coordinated oo
or consolidated pretrial proceedings pursuant to 28 U.S.C.
'§1407. "In re Multidistrict Civil Actions Involving the Ce- Tes ¥nld EE N R : °
Air Crash Disaster Near Dayton, Ohig on March 9, 1967, Co
310 F. Supp. 798 (J.P.M.L. 1970). Upon the suggestion	of
~ the transferee court, the Panel conditionally remanded the .
above-captioned action to the Eastern District of Michigan
; * Although Judges Lord and Weigel were not present at Co
the hearing, they have, with the consent of all parties,participated in this decision.

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a N . - 2 -
RE for further proceedings and trial. See R.P.J.P.M.L. 15(f),
53 F.R.D. 119 (1971), as amended 55 F.R.D. LI, LII-LIII (1972).
o Defendant Tann Co. opposes remand. On the basis of the trans-
feree court's suggestion, the papers filed and the hearing :
held, we order this action remanded to the Eastern District of |
Michigan for further proceedings.
There have been extensive pretrial and trial. proceedings
in this litigation before Judge Weinman. And all of the .
actions comprising this litigation, except the Humphreys action,
have now been either terminated in the transferee district or
remanded to the appropriate transferor court. Nevertheless,
‘defendant Tann opposes remand of this remaining action on the
| ground that pretrial proceedings in that action have not yet |
5 been completed. Defendant asserts that it has pretrial motions
~ : currently pending before the transferee court and that these
.@ moticns. should be decided by the transferee court. a
| The governing statute states that each action transferred
by the Panel "shall be remanded by the (P]anel at or before the
a conclusion of such [coordinated or consolidated] pretrial | oo
: a proceedings to the district from which it was transferred | oo
B oo unless it shall have been previously terminated. " 28 U.S.C.
Le §1407 (a). Since the Humphreys action is the only action ~
remaining in this litigation, we find that no purpose would
be served by delaying remand of this action to the Eastern |
oo District of Michigan. |
®

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n os |
| Tt is not contemplated that a Section 1407 transferee
judge will necessarily complete all pretrial proceedings in
C all actions transferred and assigned to him by the Panel, but
rather that the transferee judge in his discretion will conduct
the common pretrial proceedings with respect to the various
actions and any additional pretrial proceedings as he deems
otherwise appropriate. Thus, in considering remand of this
action, the Panel is greatly influenced by the transferee
judge's suggestion that remand of the action is appropriate.
oo Cf. In re Penn Central Commercial Paper Litigation 358
F. Supp. 284 (J.P.M.L. 1973). His suggestion is obviously an
indication that he perceives his role under Section 1407 to | :
| have ended. Co | :
7 ) : Furthermore, the motions in the Humphreys action currently |
‘pending before the transferee court are of a nature unique to
& C that action and their resolution does not require any particularexpertise that the transferee judge might have gained from
oo supervising this litigation. Accordingly, these motions can
just as casily be presented to the transferor court for
decision. |
IT IS THEREFORE ORDERED that the action entitled George -
. H. Humphreys, etc. v. Herman Tann d/b/a Tann Co., et al., oo
(E.D. Michigan, C.A. No. 32421) , s.p. Ohio, Civil Action No.
3834ML(F), be, and the same hereby is, REMANDED to the Eastern
District of Michigan. :
o 3