Opinion
Civ. No. 02-1627 (DRD).
December 26, 2002
John E. Patton, Esq., Union, NJ, Richard F. Schaden, Esq., Bruce A. Lampert, Esq., Daniel Alan Nelson, Esq., Schaden, Katzman, Lampert McClune, Broomfield, CO, Attorneys for Plaintiffs, Bill Bobian, et al.
K. Roger Plawker, Esq., Walder, Hayden Brogan, P.A., Roseland, NJ, Allan I. Mendelsohn, Esq., Mendelsohn O'Keefe, Washington, D.C, Marvin L. Szymkowicz, Bowytz Savit Szymkowicz, LLP, Bethesda, MD, Attorneys for Defendant, CSA Czech Airlines
OPINION
In this action for damages under the Warsaw Convention, Plaintiffs claim that they suffered injuries as a result of turbulence experienced aboard Defendant CSA Czech Airlines' ("CSA") flight 52 on its approach to Newark on September 16, 1999. On October 30, 2002, the Court granted CSA's motion for partial summary judgment, dismissing the claims of all but one of the 29 Plaintiffs on the grounds that they had not come forward with sufficient evidence of bodily injury compensable under the Warsaw Convention. With respect to the remaining Plaintiff, Eugene Townsend, Defendants moved for and were granted summary judgment as to claims arising from all asserted injuries except one, a heart attack he claims to have suffered as a result of his experiences on Flight 52.
A full account of the facts of the case appears in the opinion corresponding to the order granting partial summary judgment.
With respect to Townsend, some clarification of the prior decision on summary judgment may be appropriate. Summary judgment was granted regarding injuries other than his alleged heart attack to the extent that those injuries are claimed to have arisen directly from turbulence aboard flight 52; but the summary judgment decision should not be construed as barring recovery for non-bodily injuries that can be shown to have flowed from that heart attack. As the opinion on summary judgment noted, the Convention's bar on claims for emotional harms is generally understood not to extend to emotional harms that flow from bodily injury: the majority view is that once a plaintiff shows a bodily injury for the purposes of the Convention, he or she can recover for emotional harm proximately caused by that injury. See, e.g., In re Air Crash at Little Rock, Ark. on June 1, 1999, 291 F.3d 503, 509-11 (8th Cir.) (discussing cases), cert. denied Lloyd v. American Airlines, Inc., 123 S.Ct. 435 (U.S. 2002). In accordance with that view, and because CSA has not argued that Townsend's heart attack is not a bodily injury, the summary judgment decision does not limit Townsend's recovery for harms flowing from a heart attack; it merely prevents him from recovering for non-bodily harms that are not shown to have resulted from it.
Plaintiffs have moved for certification of the Court's October 30, 2002 order as a final judgment under Fed.R.Civ.P. 54(b). In response to the motion, CSA indicated that it would be prepared to accept certification if coupled with a stay of proceedings relating the Townsend's non-dismissed claims. Subsequently the parties communicated to the Court their agreement that certification combined with such a stay represents the best course. Accordingly the motion is unopposed. Nevertheless, because certification under Rule 54(b) may not be ordered merely as an "accommodation to counsel," Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 363 (3d Cir. 1975), the Court must make an independent determination that certification is appropriate. An analysis of the relevant factors reveals that certification is indeed appropriate with respect to the 28 Plaintiffs whose claims were fully dismissed, principally because an immediate appeal on their behalf of will greatly clarify the scale of the case and the legal issues affecting its outcome, and because such clarification will considerably enhance the likelihood of settlement.
DISCUSSION
Rule 54(b) provides in part,
When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
When making a Rule 54(b) determination, the court must first decide whether the order in question is a final judgment under 28 U.S.C. § 1291. A final judgment for the purposes of § 1291 is generally defined as a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.Lauro Lines, S.R.L. v. Chasser, 490 U.S. 495, 497 (1989). If the order is a final judgment, the court must exercise its discretion to determine that there is no just reason for delay, taking into consideration judicial administrative interests as well as the equities involved. See Sussex Drug Products v. Kanasco, Ltd., 920 F.2d 1150, 1153 (3d Cir. 1990) (quotingCurtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 (1980)).
Accordingly, as a threshold matter it must be noted that a final judgment for the purposes of Rule 54(b) has not been entered with respect to Plaintiff Townsend's claimed injuries, and that certification is accordingly available only with respect to the other 28 Plaintiffs. While some uncertainty attends the definition of a final judgment, the Court of Appeals has made it clear that orders dismissing elements of plaintiffs' damages without entirely dismissing any claim for relief are not final judgments for which certification is available. See Sussex Drug, 920 F.2d at 1154 (citing Marino v. Nevitt, 311 F.2d 406, 408 (3d Cir. 1963)). Therefore, no certification is available with respect to the summary judgment order as it affected Townsend's claims. By contrast, the order is unquestionably final with respect to the other Plaintiffs, and the dismissal of their claims may be certified as a final judgment if administrative and equitable factors favor immediate appeal.
The court of appeals has provided the following illustrative list of factors that may contribute to the certification analysis, noting that "[d]epending upon the facts of the particular case, all or some of the above factors may bear upon the propriety of the trial court's discretion in certifying a judgment as final under Rule 54(b)":
(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 144-45 (3d Cir. 2001) (quoting Allis-Chalmers, 521 F.2d at 364 (citations omitted).
In the present case the parties have implicitly stipulated to the fact that equitable factors favor certification, and in fact certification would greatly benefit both sides in the litigation. At present the claims of 28 out of the 29 Plaintiffs are effectively in suspense — dismissed from the case but subject to reinstatement on appeal. As long as the final outcome with respect to those claims is uncertain, both sides may be dissuaded from settling the litigation because the potential recovery by all 29 Plaintiffs (subsequent to a reversal), would more than justify the cost of prosecuting and defending the action. Certification will eliminate the possibility that the parties might squander resources litigating Townsend's claims only to discover (if summary judgment with respect to the other Plaintiffs is upheld) that the recovery at stake did not justify their efforts and expenditures. (Conversely, as discussed below, certification, especially but not exclusively if it results in an affirmance, will considerably enhance the likelihood of settlement by clarifying the real amount in controversy and by settling legal issues determining the damages for which Plaintiffs may recover.) If only because it would clarify the settlement calculus and prevent waste, certification is clearly the most favorable course for both sides in the case. To state the matter more broadly, equitable considerations clearly favor resolving as much of the case as possible as expeditiously as possible; and where, as here, the dismissed claims outnumber those remaining so heavily, Rule 54(b) certification is the best way to accomplish that goal.
This discussion assumes (with some degree of confidence) that an appeal will result in an affirmance or reversal on substantive grounds — rather than a reversal on the grounds that the summary judgment motion was premature.
Considerations of judicial administration, while they also support certification, do not favor it as clearly as the interests of the parties do. As a general matter certification is disfavored because it is inconsistent with the "historic federal policy against piecemeal appeals." Curtiss-Wright, 446 U.S. at 8; and perhaps the most prominent (although not by itself controlling) consideration in the Rule 54(b) analysis is the likelihood that certification will result in the Court of Appeals' being presented twice with the same factual and/or legal issues. See, e.g., Id.; Gerardi v. Pelullo, 16 F.3d 1363, 1371 (3d Cir. 1994). Such duplicative review might occur where the appellate court is called upon to review the disposition of certified claims and then later compelled to review the disposition of similar uncertified claims under the same or similar legal standards, or where claims under different legal theories implicate similar factual determinations. See, e.g., Fox v. Baltimore City Police Dep't, 201 F.3d 526, 531 (4th Cir. 2000) (noting that certification can be inappropriate where "new facts might come to light in . . . further proceedings that . . . provide a basis for questioning the soundness of the appellate court's prior conclusions." (internal quotation marks omitted));Gerardi, 16 F.3d at 1372 (noting, in rejecting certification of summary judgment, that a full trial record might aid in the consideration of legal issues presented); Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories, Inc., 2002 WL 31159048, at *3 (S.D.N.Y. 2002) (describing the argument against certification, which the court ultimately ordered).
Problems of duplicative review appear much less pressing where certified and uncertified claims involve identical, purely legal questions: in such cases the appellate court's resolution of the question with respect to the certified claims governs (and thus precludes) any later appeal raising the same issue. See, e.g., Fox, 201 F.3d at 531 (noting that certification involved a "pure question of law"); Stadler v. McCulloch, 882 F. Supp. 1524, 1527 (E.D. Pa. 1995) (noting that the appellate court would be unlikely to revisit a legal issue where initial resolution "would likely govern all potential plaintiffs and members of the putative class"). In addition it should be noted that "complete legal or factual distinction is not necessary to 54(b) certification." Carter v. City of Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999).
It must be conceded that the chance of some such duplicative review exists if certification is granted here. If the Court of Appeals affirms the grant of summary judgment as to all 28 Plaintiffs other than Townsend, its decision will resolve some but not all the issues that might be raised on appeal in connection with Townsend's claims. An affirmance will almost certainly preclude any argument on Townsend's part that he should be permitted to recover for post-traumatic stress disorder ("PTSD") or any other psychic harm arising directly from any turbulence that affected flight 52. But an affirmance might not address (or preclude an appeal raising) related issues that arise only with respect to Townsend's claims — issues governing the compensability of emotional harms flowing from or accompanied by bodily injury. Depending on the outcome at a potential trial, Townsend might argue that he should be permitted to recover for emotional harms that merely resulted from the same accident that caused physical injury, and CSA might argue that Townsend should not recover for any emotional harms — even those that flow from his heart attack. It should be noted however that the Court of Appeals would probably be compelled to address similar arguments if it reversed the summary judgment decision (either on the grounds that Plaintiffs' supposed brain injuries are compensable under the Warsaw Convention or on the grounds that the Plaintiffs have provided sufficient evidentiary support for other claims of bodily injury): a determination that Plaintiffs had, in any respect, presented sufficient proof of bodily injury to survive summary judgment would call for an answer to the related question whether and how they should be permitted to recover for emotional harms arising from the same events. Accordingly, duplicative appellate review would be less likely following a reversal than following an affirmance.
In addition, because all of the supposed injuries to which Townsend points (other than his heart attack) are also claimed by at least some of the other Plaintiffs, affirmance of the summary judgment order would also effectively prevent him from arguing on appeal that those injuries are sufficiently corporeal to be compensable under the Convention.
It is not clear that CSA would argue this point: in its reply brief in connection with the motion for summary judgment (in the course of its general argument against recovery for emotional harms), it quoted language from In re Aircrash at Little Rock stating the majority position that such harms are compensable only where traceable to bodily injuries.
Another factor in the judicial economy analysis that weighs against certification is the possibility that the litigation of Townsend's case might moot the need for appellate review of issues connected to the dismissal of the other Plaintiffs' claims. See, e.g., Allis-Chalmers, 521 F.2d at 364 (noting such a possibility as one factor in the Rule 54(b) determination). Assuming (although it is not self-evident) that the dismissed Plaintiffs would be bound by determinations of issues in the litigation of Townsend's claims, a determination that the turbulence affecting flight 52 did not constitute an "accident" for the purposes of the Warsaw Convention would bar recovery by any Plaintiffs. See Air France v. Saks, 470 U.S. 392, 405 (1985).
The Plaintiffs whose claims have been dismissed are still nominally (in the absence of a Rule 54(b) certification) parties to the litigation; and all Plaintiffs are currently represented by the same attorneys. However at this stage it is not possible to determine whether a resolution of issues in Townsend's case could ultimately be given preclusive effect against the other Plaintiffs.
When turbulence can be deemed an accident under the Convention is open to both legal and factual dispute, and such any determination on the subject is itself likely to be subjected to appellate review.
Although these considerations do weigh against certification, in the final analysis they are outweighed by the equitable factors already described and by countervailing considerations of judicial economy. Most notably, as already discussed, certification will greatly enhance the likelihood of settlement, especially if summary judgment is affirmed as to the 28 Plaintiffs whose claims have been dismissed. Although, not surprisingly, it has not made any promises, CSA itself noted in its response to the present motion that an affirmance would profoundly affect the calculations relevant to settlement, diminishing the Defendant's exposure (and Plaintiffs' possible recovery) dramatically and potentially eliminating the economic justification for continued litigation.
To some extent the decision to certify the dismissal of these Plaintiffs' claims under Rule 54(b) is influenced by the Court's confidence that that dismissal will be upheld. As the opinion on summary judgment discussed, these Plaintiffs have not offered evidence of bodily injuries directly caused by turbulence aboard flight 52, and the argument on which they rely most heavily, that PTSD (recharacterized as a brain injury) is compensable under the Convention, is directly inconsistent withTerrafranca v. Virgin Atlantic Airways Ltd., 151 F.3d 108, 108-11 (3d Cir. 1998).
Numerous courts, including the Supreme Court, have acknowledged that facilitating settlement is a legitimate factor supporting certification under Rule 54(b). See, e.g., Curtiss-Wright, 446 U.S. at 8 n. 2 (noting in dicta that "if the district court concluded that there was a possibility that an appellate court would have to face the same issues on a subsequent appeal, this might perhaps be offset by a finding that an appellate resolution of the certified claims would facilitate a settlement of the remainder of the claims"); Stadler, 882 F. Supp. at 1527 (approving certification in part because without it uncertainty as to the extent of possible liability would hamper settlement efforts); U.S. Golf Ass'n v. St. Andrews Systems, Data-Max, Inc., 749 F.2d 1028, 1031 (3d Cir. 1984) (approving certification where it would clarify issues for trial and facilitate settlement); Allen-Myland, Inc. v. International Business Machines Corp., 1993 WL 169849, at *2-*5 (E.D. Pa. 1993) (certifying claims in part on the basis of indications that doing so would facilitate settlement); Geneva Pharmaceuticals, 2002 WL 31159048, at *1-*4 (ordering certification under Rule 54(b) in part to facilitate settlement, although certified and uncertified claims were factually intertwined); Loral Fairchild Corp. v. Victor Co. of Japan, Ltd., 931 F. Supp. 1044, 1047-48 (E.D.N.Y. 1996) (certifying claims where affirmance would lessen potential liability and facilitate settlement).
In addition to improving the prospects for settlement, certification would also make duplicative trials less likely and clarify the issues for a possible trial. The avoidance of multiple trials is not generally a consideration that would by itself offset the risk of duplicative appeals: Rule 54(b) and the cases applying it are appropriately more concerned with conserving Court of Appeals resources than with efficiency of district court adjudication. See, e.g., Gerardi, 16 F.3d at 1371-72 (rejecting certification where the district court had invoked the possibility of multiple trials as one basis for it). Nevertheless, the avoidance of waste and error in the trial court is an additional factor supporting certification here. Cf. Carter, 181 F.3d at 346-47 (noting that certification would avoid a substantial risk of duplicative trials); U.S. Golf, 749 F.2d at 1031; Geneva Pharmaceuticals, 2002 WL 31159048, at *1-*4 (S.D.N.Y. 2002).
It is of course impossible to predict the course of the litigation with certainty. But taking into account the probabilities associated with the various likely scenarios, the probable benefits of certification to efficient judicial administration outweigh its possible costs. As already discussed, the equities at issue also clearly favor certification; and it will accordingly be granted as to the 28 Plaintiffs whose claims were entirely dismissed. In addition, in order to ensure that the benefits of certification may be fully realized, further proceedings in this Court will be stayed until the appeal of the certified claims is resolved.