In Re Air Crash Disaster at Gr. Cincinnati Airport, Etc. , 354 F. Supp. 275 ( 1973 )

354 F.Supp. 275 (1973)

In re AIR CRASH DISASTER AT GREATER CINCINNATI AIRPORT (CONSTANCE, KENTUCKY) ON NOVEMBER 20, 1967.

No. 8B.

Judicial Panel on Multidistrict Litigation.

February 5, 1973.

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.

OPINION AND ORDER

PER CURIAM.

The crash of a Trans World Airline passenger plane at the Greater Cincinnati Airport in 1967 led to the filing of more than seventy actions which were coordinated for pretrial purposes in the Eastern District of Kentucky. In re November 20, 1967 Greater Cincinnati Airport Air Disaster Litigation, 298 F. Supp. 353 (Jud.Pan.Mult.Lit.1968); 298 F.Supp. 355 (Jud.Pan.Mult.Lit.1969); 298 F.Supp. 358 (Jud.Pan.Mult.Lit.1969). In August 1972 the transferee court entered an order stating that all discovery proceedings had been completed and that the cases appeared to be appropriate for remand to the respective transferor courts for trial. After receiving notification of the entry of this order and various papers from the parties to the litigation, the Panel ordered the parties to show cause, pursuant to revised Rule 15, 55 F.R.D. LI, why the cases should not be remanded. Based upon the responses to that order to show cause and the arguments presented at the hearing on this matter, we order all actions remanded to the transferor courts.

It is clear from the responses of the parties and the final order of the transferee court that all pretrial proceedings have been completed and that the cases are now ready for trial in the transferor forums.^[1] The pretrial processing of the litigation has generated several problems, however, concerning the compensation of liaison counsel and the effect of a summary judgment entered in favor of two defendants. Several parties urge that the Panel either attempt to resolve these problems or deny remand so that they may be resolved in the transferee court. We do not believe that Section 1407 authorizes us to do more than call these problems to the attention of the transferor courts in our order of remand.

In this litigation as in many others transferred by the Panel, it became necessary to appoint liaison counsel to coordinate the pretrial efforts of the plaintiffs. See, Manual for Complex Litigation § 1.90 (January 24, 1973 Revision). It appears that liaison counsel expended considerable effort in discovery and other pretrial matters and the transferee court acknowledged these efforts and ordered counsel to work out the appropriate compensation for liaison counsel on a case-by-case basis. The court further ordered that no settlement would be approved by the court unless approved by liaison counsel. Although this order was generally effective, the plaintiffs in some of the cases now before the Panel for remand have not paid liaison counsel for his efforts and liaison counsel has brought these facts to the attention of the Panel. While we are unable to order payment of these fees or to condition remand on such payment, we do think it appropriate to call these facts to the attention of the transferor courts since liaison counsel will have the right to seek relief in those courts after remand.

The remaining problem concerns two defendants in the litigation, General Dynamics Corp. and Kollsman Instrument Corp. After extensive discovery, plaintiffs moved for summary judgment against Trans World Airlines on the issue of liability and defendants General Dynamics and Kollsman moved for summary judgment in their favor against plaintiffs and for dismissal of the cross-claims and third-party claims asserted by Trans World Airlines against them. The transferee court granted plaintiffs' motion for summary judgment against Trans World Airlines. It also granted General Dynamics' and Kollsman's motion for summary judgment against the plaintiff and for dismissal of Trans World Airlines' cross-claims and third-party claims. Reidinger v. Trans World Airlines, 329 F.Supp. 487 (E.D.Ky.1971). Although certain portions of the transferee court's judgment were appealed from and ultimately reversed, no appeal was taken from the order granting summary judgment in favor of General Dynamics and Kollsman. Reidinger v. Trans World Airlines, 463 F.2d 1017, 1018 (6th Cir. 1972). It appears, however, that no final judgment was entered in favor of these defendants, only the order holding them entitled to summary judgment.

Both General Dynamics and Kollsman urge the Panel to strike them as party defendants in the litigation on the basis of Judge Swinford's order and the lack of an appeal therefrom. They contend that unless such action is taken by the Panel, they will be required to proceed separately in each transferor district to secure final judgment in their favor. We lack the power to take such action, however, and can only remand the actions to the transferor courts with a description of the factual background of these defendants' problems. It will then be necessary for the defendants to seek relief from the transferor courts.

It is therefore ordered that all actions listed on the attached Schedule A be, and the same hereby are, remanded to the districts from which they were transferred.

SCHEDULE A
Eastern District of Kentucky
Margaret J. Zahneis, etc. v. Trans              Civil Action
World Airlines, et al. (S.D.Ohio, No.           No. 1918L
6644)
Joyce E. Schiller, etc. v. Trans World          Civil Action
Airlines, et al. (S.D.Ohio, No. 6045)           No. 1919L
John Bernard Doherty, etc. v. Trans             Civil Action
World Airlines (W.D.Pa., No. 67-1511)           No. 1923L
Catherine Reed, etc. v. Trans World             Civil Action
Airlines (N.D.Ill., No. 68 C 110)               No. 1926L
Julius Kashkin v. Trans World Airlines,         Civil Action
et al. (C.D.Calif., No. 67-1783)                No. 1930L
John H. Klette, Jr., etc. v. Trans              Civil Action
World Airlines, et al. (W.D.Ky., No.            No. 1935L
5892)

William J. Bauman, etc. v. Trans                Civil Action
World Airlines, et al., (C.D.Calif., No.        No. 1951L
68-1877)
Julius Kashkin v. Kollsman Instrument           Civil Action
Corp. (N.D.Calif., No. 50334)                   No. 1954L
George Brokaw v. Standard Kollsman              Civil Action
Industries, Inc., et al. (N.D.Ill., No.         No. 1957L
68 C 2209)
Mary Rita Murphy v. Standard Kollsman           Civil Action
Industries, Inc., et al. (N.D.Ill.,             No. 1958L
No. 68 C 2210)
Mary Rita Murphy, etc. v. Standard              Civil Action
Kollsman Industries, Inc., et al. (N.D.         No. 1959L
Ill., No. 68 C 2211)
Virginia Sandish, etc. v. Standard              Civil Action
Kollsman Industries, Inc., et al. (N.D.         No. 1960L
Ill., No. 68 C 2212)
James E. Simpson, etc. v. Standard              Civil Action
Kollsman Industries, Inc., et al. (N.D.         No. 1961L
Ill., No. 68 C 2231)
Dolores Monkelis, etc. v. Standard              Civil Action
Kollsman Industries, Inc., et al. (N.D.         No. 1962L
Ill., No. 68 C 2248)
Francis A. Hoblak, etc. v. Standard             Civil Action
Kollsman Industries, Inc., et al. (N.D.         No. 1963L
Ill., No. 68 C 2249)
Dolores Monkelis, etc. v. Standard              Civil Action
Kollsman Industries, Inc., et al. (N.D.         No. 1964L
Ill., No. 68 C 2250)
The Central Trust Co., etc. v. Trans            Civil Action
World Airlines, et al. (S.D.Ohio, No.           No. 1965L
6874)
The Central Trust Co., etc. v. Trans            Civil Action
World Airlines, Inc., et al. (S.D.              No. 1966L
Ohio, No. 6875)
The Central Trust Co., etc. v. Trans            Civil Action
World Airlines, Inc., et al. (S.D.Ohio,         No. 1967L
No. 6876)
Irene E. Mulligan, etc. v. Trans                Civil Action
World Airlines, et al. (S.D.Ohio, No.           No. 1968L
6883)
Jean B. Smith, etc. v. Trans World              Civil Action
Airlines, et al. (S.D.Ohio, No. 6908)           No. 1969L
Lena M. Claflin, etc. v. General Dynamics       Civil Action
Corp., et al. (S.D.Ohio, No.                    No. 1970L
6914)
Mary Rita Murphy v. Trans World                 Civil Action
Airlines, Inc., et al. (W.D.Pa., No.            No. 1972L
68-1260)
Mary Rita Murphy, etc. v. Trans                 Civil Action
World Airlines, Inc., et al. (W.D.Pa.,          No. 1973L
No. 68-1261)
George Brokaw v. Trans World Airlines,          Civil Action
et al. (W.D.Pa., No. 68-1303)                   No. 1974L
James E. Simpson, etc. v. Trans                 Civil Action
World Airlines, et al. (W.D.Pa., No.            No. 1976L
68-1340)
Virginia Sandish, etc. v. General Dynamics      Civil Action
Corp. (W.D.Pa., No. 68-1230)                    No. 1977L
Dolores Monkelis, etc. v. Trans World           Civil Action
Airlines, et al. (W.D.Pa., No. 68-1320)         No. 1982L
Dolores Monkelis, etc. v. Trans World           Civil Action
Airlines, et al. (W.D.Pa., No. 68-1321)         No. 1983L
Francis A. Hoblak, etc. v. Trans                Civil Action
World Airlines, et al. (W.D.Pa., No.            No. 1984L
68-1322)
Virginia Sandish, etc. v. Trans World           Civil Action
Airlines et al. (W.D.Pa., No. 68-856)           No. 1990L
Joy Ann Sweet, et al. v. Trans World            Civil Action
Airlines (C.D.Calif., No. 68-1893-HP)           No. 1991L
Ruth M. Ness, etc. v. Trans World               Civil Action
Airlines, et al. (C.D.Calif., No. 68-1903-HP)   No. 1992L
Margaret L. Kofink, etc. v. Trans               Civil Action
World Airlines, et al. (Mass., No. 68-1035-M)   No. 1993L
William Duffy, etc. v. Trans World              Civil Action
Airlines, et al. (Mass., No. 68-1022-M)         No. 1994L
Josephine Andrunas, etc. v. Trans               Civil Action
World Airlines, et al. (Mass., No.              No. 1996L
68-1008-M)
Angelo A. Moreno, etc. v. Standard              Civil Action
Kollsman Industries, Inc. (N.D.Ill.,            No. 1980L
No. 69 C 69)

NOTES

[*] Although Judge Murrah was not present at the hearing, he has, with the consent of all parties, participated in this decision.

[1] The transferee court has denied the motion of the United States for transfer of certain actions in which it is a defendant to the Eastern District of Kentucky for all purposes, pursuant to 28 U.S.C. § 1404 (a).