IN RE: Air Crash Disaster at Toronto International Airport on July 5, 1970

Case MDL No. 103 Document 2 Filed 05/01/15 Page 1 of 7
BEFORE THE JUDICIAL PANEL), "1,
ON CL,
| © MULTIDISTRICT LITIGATION Ce EAT
JU ae ’	<0
By pe ~ 137»
IN RE AIR CRASH DISASTER ) oft ny, TE
AT TORONTO INTERNATIONAL ) SE gp
AIRPORT OW JULY 5, 1970 ) DOCKET. NO. 103
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN, JOHN MINOR WISDOM¥*, EDWARD
WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD,
ITI*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM
On July 5, 1970, a passenger aircraft operated by Air
Canada crashed near Toronto International Airport, fatally
injyring one hundred passengers and nine crew members. Since
the time of the crash 34 wrongful death actions have been
$ instituted in the federal and state courts. Some of these	cases were filed in the Central District of California and
several additional actions were either removed to or trans-
ferred to that district. All of the actions pending in that
district and listed on the attached Schedule A have been
assigned to Judge Peirson Hall and pretrial proceedings in
those cases are now underway.
The only federal action arising from this crash not
pending in the Central District of California is the wrongful
death action brought by Henry Smith in the Northern District
of Illinois. Air Canada earlier moved for transfer of that
* Judges Wisdom and Lord were not present at the hearing,
but they have, with the consent of all parties, participated
in this decision.

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I,
} | action to California pursuant to 28 U.S.C. §1404(a). Smith
: | objected to transfer for all purposes because of alleged
hardship to him and tc the relatives of the deceased passenger
whose estate he represents. It appears that the father of the
deceased passenger, a resident of Michigan, is unemployed by
reason of poor health. It is asserted that his lack of funds
as well as his physical disabilities would make travel to
California impossible. The brother of the deceased passenger
and Smith are said to be similarily situated. On the basis
of this showing of hardship, the Illinois district court denied
the motion for transfer under Section 1404 (a).
Air Canada now moves for transfer of the Smith action
to the Central District of California pursuant to 28 U.5.C.
§1407. It urges that for the convenience of the parties and
witnesses and for the just and efficient conduct of the liti-
gation issues common to all cases should be pretried in a
single district. And it urges that the Central District of
California is the most appropriate transferee district because
of the advanced status of proceedings before Judge Hall. We
agree.
Smith opposes transfer under Section 1407 on the same
basis he opposed transfer under Section 1404 (a) --hardship	to
him and the relatives of the deceased in traveling to California.
Smith acknowledges that transfer under Section 1407 is for
pretrial purposes and that the necessity for his presence and
8 the presence of the relatives of the deceased in California is	de minimis. He argues, however, that transfer by the Panel

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8 would, as a practical matter, require him to go to trial in	California. Courts assigned litigation pursuant to Section
1407 have, in some instances, transferred litigation to the
transferee district or another district for all purposes pur-
1/
suant to Section 1404 (a). Assuming arguendo that Smith's case
is inappropriate for transfer under Section 1404(a), we are
unwilling to assume, as Smith would have us do, that the trans-
2/
feree court will order such a transfer. Where an action is
otherwise appropriate for coordinated or consolidated pretrial
proceedings, the possibility of an abuse of discretion or
unfavorable ruling by the transferee court will not prevent
transfer. Cf. In re Plumbing Fixtures Litigation, F.
Supp. (J.P.M.L. 1972); See also, In reMotion Picture
8 Antitrust Litigation, F. Supp. _(J.P.M.L. 1972).IT IS THEREFORE ORDERED that the action pending in the
Northern District of Illinois and listed on the attached
Schedule A be, and the same hereby is, transferred to the
Central District of California and, with the consent of that
1l/ In re Antibiotic Antitrust Actions, 333 F. Supp. 299
S.D.N.Y. 1971), pet. for writ of mandamus denied sub nom.
Pfizer, Inc. v. Lord, 447 F.2d 122 (2d Cir. 1971); State of
Illinois v. Harper & Row Publishers, Inc. (N.D. Iil., No.
67C899, March 23, 1971); In re Hanover, New Hampshire Air
Disaster Litigation, F. supp. (D.N.H. 1971); Fox Vv.
Allegheny Airlines, Inc. (S.D. Ind., Nov. 4, 1971); Jack
Winter, Inc. v. Koratron Co., 326 ¥. Supp. 12% (N.D. Calif.
1971); IBM v. Greyhound Computer Corp., _ -F. Supp. __
(D. Minn., 1972).
2/ In addition, there is some doubt concerning the legality
of a second decision of a motion for transfer under Section
1404 (a) which is at variance with an initial determination
under Section 1404(a). Insurance Co. of North America	Vv.
Ozean Stinnes-Linien, Inc. 374 F.2d 224 {5th Cir. 1966)	wr

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~4-
8 court, assigned to the Honorable Peirson Hall for pretrialproceedings pursuant to 28 U.S.C. §1407 with the actions
listed on Schedule A and pending in that district.

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SCHEDULE A DOCKET 103
8 NORTHERN DISTRICT OF ILLINOISHenry Smith, etc. v. McDonnell Douglas Civil Action
Corp., et al. No. 71-C-1719
CENTRAL DISTRICT OF CALIFORNIA
Scott Herrmann, etc. v. Air Canada, Civil Action
Inc., et al. No. 70-1635-PH
John Bradley Witmer, etc. v. Ailr Civil Action
Canada, Inc., et al. No. 70-2442-PH
Joseph Vincent McKettrick, etc. wv. Civil Action
Air Canada, et al. No. 70-2904-PH
Bruce Sultan v. Air Canada, Inc., Civil Action
et al. No. 71~-948-PH
Nancy C. Moore, etc. v. Air Civil Action
Canada, et al. No. 71-1097-PH
Arthur J. Tielenes v. Air Canada, Civil Action
et al. No. 71-1106-PH
Gordon W. Houston, et al. v. Air Civil Action
Canada, Inc., et al. No. 71-1179-PH
Mark Simon, etc. v. Air Canada, Civil Action
Inc., et al. No. 71-1367-PH
Joseph S. Simone v. Air Canada, Civil Action
Inc., et al. No. 71-1491-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-1537-PH
Carman Mable Hamilton, etc. v. Civil Action
McDonnell Douglas Corp. No. 71-1544-PH
Jennette Rowland, etc. v. Civil Action
McDonnell Douglas Corp. No. 71-1545-PH
Air Canada, Inc. v. McDonnell Civil Action
Douglas Corp. No. 71-1560-PH
Georgina A. Woodard, etc. v. Civil Action
McDonnell Douglas Corp. No. 71-1561-PH
Susan Jane Hill, etc. wv. Civil Action
Mcbonnell Douglas Corp. No. 71-1562-PH
Helen Bailey, etc. v. Air Civil Action
Canada No. 71-1947-PH

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SCHEDULE A -2=- DOCKET NO. 103
CENTRAL DISTRICT OF CALIFORNIA
8 Irene Giannoulis, et al. v. Air Civil ActionCanada, et al. : No. 71-1972-PH
McDonnell Douglas Corp. v. Air Civil Action
Canada, Inc. No. 71-2161-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2219-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2220-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2221-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2222-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2223-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2224-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2225-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2226-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2227-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2228-PH
Katherine Aanestad, etc. v. Civil Action
McDonnell Douglas Corp. No. 71-2229-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2230-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2231-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2232-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2233-=PH

Case MDL No. 103 Document 2 Filed 05/01/15 Page 7 of 7
SCHEDULE A -3- DOCKET NO. 103
$ CENTRAL DISTRICT OF CALIFORNIAKatherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. : No. 71-2234-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2235-PH
Katherine Aanestad, etc. v. Air Civil Action
Canada, Inc., et al. No. 71-2242-PH