Summary
affirming decision of MDL court to apply punitive damages law of Washington, rather than Pennsylvania, the location of the crash, when the "overwhelming majority" of aircraft design and manufacturing activities took place in Washington
Summary of this case from In re Air Crash at Belle HarborOpinion
96 Civ. 8560 (JFK).
January 4, 2001.
For Plaintiffs: KIRKPATRICK LOCKHART LLP, New York, New York, Pittsburgh, Pennsylvania Of Counsel: Eugene L. Licker, Esq., Eva M. Ciko, Esq., Thomas R. Johnson, Esq., Joseph Leibowicz, Esq.
For Defendant Boeing Company: REBOUL, MacMURRAY, HEWITT, MAYNARD KRISTOL, New York, New York Of Counsel: William I. Sussman, Esq.
PERKINS COIE LLP, Seattle, Washington, Of Counsel: Thomas J. McLaughlin, Esq., Bruce D. Campbell, Esq., Joe Silvernale, Esq., Kevin Osborn, Esq.
OPINION and ORDER
Before the Court is the motion of the Plaintiffs Gloria D. Dickerson, Ralph Dickerson, Jr., and Gloria D. Dickerson as administratix of the estate of Marla Rene Dickerson (the "Plaintiffs") to reconsider the Western District of Pennsylvania court's decision in this case of August 17, 1999, (see Johnson Aff. Ex. 1), as to the Defendant Boeing Company ("Boeing"). In that decision, the Pennsylvania district court granted partial summary judgment to the Defendants Boeing and Parker-Hannifin Corp. ("Parker-Hannifin") and dismissed the Plaintiffs' claims for punitive damages.
Jurisdiction in this case is premised on diversity of citizenship. The Plaintiffs are citizens of New York. Boeing is a Delaware corporation with its principal place of business in Washington. Parker-Hannifin is an Ohio corporation with its principal place of business in Ohio. The Defendant USAir, Inc. ("USAir"), is a Delaware corporation with its principal place of business in Pennsylvania. The amount in controversy exceeds $75,000. For the reasons that follow in this Opinion and Order, the Plaintiffs' motion is denied.
BACKGROUND
Just before seven o'clock on the evening of September 8, 1994, USAir Flight 427 was cleared for its descent and approach towards Pittsburgh International Airport. Its First Officer began his routine public address announcement, thanking the passengers for traveling from Chicago with USAir and instructing the flight attendants to prepare the cabin for arrival. The pilots eased the Boeing 737-300 aircraft into its landing configuration, flying at a speed of 190 knots with flaps at position one, as prescribed by Boeing's published procedures.
Three seconds after crossing the wake of a preceding Boeing 727, Flight 427's rudder deflected to the left in a sustained "rudder hardover." With its pilots unable to regain control of the airplane, it crashed twenty-three seconds later into the western Pennsylvania countryside. All 132 passengers and crew perished, including Marla Rene Dickerson, a twenty-five year-old law student traveling to her boyfriend's ordination.
Before examining the circumstances surrounding the crash of Flight 427, an explanation of some relevant terms is necessary. An airplane such as Flight 427 moves its nose vertically along what it known as a "pitch axis." Pitching is controlled through an airplane's "longitudinal control system" by means of elevators on the airplane's tail.
An airplane "rolls" in a left-wing-up, right-wing-down position, or vice versa. An airplane's roll axis is controlled through its "lateral control system" by means of ailerons and spoilers on its wings.
An airplane moves it nose horizontally through its "directional control system." This axis, the "yaw," is controlled by means of the rudder on the airplane's tail. A sustained deflection of the rudder in full travel "blowdown" position is known as a "rudder hardover," and can cause both yawing and rolling.
Normally, an airplane's flight crew can compensate for the effects of a rudder hardover by means of the airplane's lateral control system. That, however, is no longer possible when an airplane drops below its "crossover speed." If an airplane experiences a rudder hardover at or below its crossover speed, its pilots cannot rely on its lateral control system to overcome the effects of a rudder hardover and avoid a crash.
In most modern commercial aircraft, the crossover speed is below the "maneuvering speed." The maneuvering speed is the minimum speed that an airplane must maintain to avoid a "stall," or "stick-shaker," situation when banking at a forty-degree angle in a steady turn. Moreover, airplanes normally fly at certain recommended "block speeds," that is, maneuvering speeds that are above "stall speed" in order to accommodate a safety margin.
As a result, most modern aircraft operating under normal conditions, at a block speed greater than stall speed and crossover speed, would never experience a rudder hardover at or below crossover speed. (See Gibbs Dep. at 143-44). In the Boeing 737, however, crossover speed can occur at or above stall speed and even block speed in certain prescribed landing configurations. (See Kerrigan Dep. Vol. I at 33; Kerrigan Dep. Vol. II at 109-10). This "crossover-speed phenomenon" creates the possibility of a rudder hardover on a Boeing 737 at or below crossover speed while on approach for landing.
Boeing was aware of this crossover-speed phenomenon with its 737s by 1992. (See Johnson Aff. Ex. 195). Boeing had begun to study the effects of a rudder hardover on the 737 in 1991 after one of its 737-200 Advanced series, United Airlines Flight 585, crashed while on approach in Colorado Springs, Colorado. In 1992, Boeing informed the Federal Aviation Administration ("FAA") that the 737 was subject to crossover-speed phenomenon while flying in flap positions one through ten at the "low speed end of its operational envelope," a condition that would occur in a landing sequence. (See id.) Boeing requested that this information not be made public. (See id. Exs. 194, 195, 197). As of the date of the crash of Flight 427, Boeing had never disclosed this information to any airline.
Neither party has addressed what action, if any, the FAA took relative to this request.
Boeing had also learned by 1965 that the rudder-control servo valve in its 737s' power control unit ("PCU") could jam and cause a rudder hardover. (See id. Ex. 342 at 15). In its 1965 certification process, Boeing described procedures to the FAA by which pilots in such situations could land safely. (See id.). In 1982, Parker-Hannifin received a patent for an improved rudder design. (See id. Ex. 429). That design, however, was not incorporated into the 737-300 series jets that were first certified in late 1984.
In the wake of the 1991 crash of United Airlines Flight 585, Boeing and Parker-Hannifin met to discuss strategies for replacing the rudder-control servo valves in all 737s' PCUs. At this October 8, 1992 meeting, Boeing and Parker-Hannifin performed a cost-benefit analysis of four potential strategies. These ranged from replacement of the servo valves only upon customer request, which would bear the minimum cost but the highest safety concerns, to full replacement within two to three years, which would bear the minimum safety concern but the highest costs to both the manufacturers and their customers. (See Johnson Aff. Ex. KK).
Ultimately, Boeing issued a service bulletin to its customers on April 15, 1993 that recommended replacement of the servo valves upon the airplanes' next scheduled PCU removal. (See id. Ex. LL). Under the cost-benefit analysis, this was a midlevel solution that ranked second in desirability for manufacturers' costs but third for safety considerations. USAir Flight 427's next PCU removal had not yet occurred before the crash.
The parents of Marla Rene Dickerson originally filed this wrongful-death and survival action in this Court. The Multi-District Litigation Panel subsequently consolidated it with over sixty other actions for pre-trial purposes. The panel assigned the consolidated case, MDL 1040, to Judge William L. Standish of the Western District of Pennsylvania.
In February 1999, Boeing and Parker-Hannifin moved for partial summary judgement on the Plaintiffs' claims for punitive damages. They argued that Washington state law, which would not permit punitive damages on those claims, should govern that punitive-damages issue. The Plaintiffs opposed the motion, arguing for punitive damages as permitted under the law of their own state, New York. The Defendant USAir took no position on the merits of the punitive-damages motion.
The parties filed fully-submitted briefs before the Western District of Pennsylvania in May 1999. Judge Standish heard oral argument on July 30, 1999. In a Memorandum Decision dated August 17, 1999, Judge Standish granted the Defendants' motion, dismissing all claims for punitive damages as barred by Washington law. Upon remand to this Court, the Plaintiffs now ask this Court to reconsider Judge Standish's ruling on that motion.
DISCUSSION
The standards controlling a motion for reconsideration are set forth in Local Civil Rule 6.3 and Fed.R.Civ.P. 59(e). The Plaintiffs, however, seek reconsideration under two exceptions to the doctrine of the law of the case: (1) on the basis of new evidence not available at the time of the original decision; and (2) to correct a clear error in that decision. The Court will consider the Plaintiffs' contentions in that order.
A. Motions For Reconsideration
Reargument is appropriate only where the court has "overlooked controlling decisions or material factual matters that were before the Court on the underlying motion," Violette v. Armonk Assocs., 823 F. Supp. 224, 226 (S.D.N.Y. 1993), which, had they been considered, "might reasonably have altered the result reached by the court." Consolidated Gold Fields v. Anglo American Corp., 713 F. Supp. 1457, 1476 (S.D.N.Y. 1989); see Morser v. ATT Information Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989). Rule 6.3 "precludes a party from advancing new facts, issues or arguments not previously presented to the court," Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y. 1995). Rule 6.3 is to be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered by the court." Anglo American Ins. Group v. Calfed Inc., XCF, 940 F. Supp. 554, 557 (S.D.N Y 1996).
The purpose of Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988). Additionally, a Rule 6.3 motion "is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved."In re Houbigat, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).
The Plaintiff's motion is clearly insufficient under Fed.R.Civ.P. 59 and Local Rule 6.3. The Plaintiffs do not contend that Judge Standish overlooked any legal or factual matters that were before him in deciding the underlying motion. Moreover, it is undisputed that the Plaintiffs moved for reconsideration well after the ten-day deadline imposed by Local Rule 6.3. Accordingly, they do not seek reconsideration pursuant to Fed.R.Civ.P. 59 and Local Rule 6.3. Instead, they base this motion on the two exceptions to the doctrine of the law of the case set forth at the top of page eight, supra.
Under the doctrine of the law of the case, courts normally should not revisit issues that they themselves or coordinate courts have already decided. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (noting that the doctrine is discretionary and not a limit on the courts' power) This doctrine derives from a strong public policy favoring finality. See North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 165 (2d Cir. 1995). Courts should only revisit such prior decisions in one of the following three situations: (1) the controlling law has changed; (2) new evidence has become available; or (3) there exists a need to correct a clear error or to prevent a manifest injustice. See Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
The Plaintiffs base this motion on the latter two exceptions to the doctrine of the law of the case. First, they argue for a reconsideration of Judge Standish's punitive-damages ruling based on new evidence allegedly unavailable to them, despite due diligence, at the time of that ruling. Second, they argue that Judge Standish's application of Washington law to the punitive damages in this case was, in any event, clearly erroneous, and thus should be reconsidered.
B. New Evidence
Judge Standish dismissed the Plaintiffs' claims for punitive damages as barred by Washington law. He ruled that Washington law governed those claims because Boeing's tortious conduct occurred primarily in Washington, including its decisions regarding what information to provide to customers such as USAir.
The Plaintiffs argue that new evidence of Boeing's failure to warn USAir of the 737's rudder-hardover and crossoverspeed risks shifts the focus of that conduct to Pennsylvania. They argue that this Court should reconsider Judge Standish's ruling in light of that new evidence and apply Pennsylvania law to those claims. The Court will consider their new evidence beyond Local Rule 6.3's ten-day time limit only to the extent that it was truly unavailable to the Plaintiffs before August 17, 1999, despite their due diligence. See also Church of Scientology Int'l v. Time Warner Inc., No. 92 Civ. 3024 (PKL), 1997 WL 538912, at *4 (S.D.N.Y. Aug. 27, 1997).
In his August 17, 1999 Memorandum Decision, Judge Standish found that the "overwhelming majority" of Boeing's activities in designing, manufacturing, assembling, and delivering the Boeing 737-300 occurred in Washington. (See Johnson Aff. Ex.1 at 5). He found that all of Boeing's communications with FAA officials relating to certification of the 737 occurred in Washington. (See id.) Judge Standish also found that Boeing made all decisions relating to the 737's rudder PCUs in Washington, including what changes to make to those PCUs and what information to provide to customers. (See id.).
Judge Standish noted that Pennsylvania's interest in this action was "not insignificant due to the fact that the accident occurred near Pittsburgh, Pennsylvania, which was Flight USAir 427's destination." (See id. at 18). Nevertheless, he ruled that Washington's interest outweighed Pennsylvania's under the circumstances of this case. (See id.). Judge Standish noted that although Flight 427's destination was in Pennsylvania, the fact that it crashed there was fortuitous in light of the fact that it had flown over three other states before the crash. (See id. at 18 n. 9).
Judge Standish found that New York's only connection to the Plaintiffs' claims was that the Plaintiffs were domiciled in New York. (See Johnson Aff. Ex. 1 at 18).
The plaintiffs argue that because of new evidence that was not available to them at the time of Judge Standish's August 17, 1999 decision, this Court should reconsider Judge Standish's decision and instead apply Pennsylvania law to their punitive-damages claims. In particular, they argue that the depositions of James Gibbs and James Kerrigan provided the following new information: (1) Flight 427 was very near or below its crossover speed when it crashed while in the landing configuration prescribed by Boeing (see Kerrigan Dep. Vol. II at 97-99, 102-03); (2) Boeing knew by 1992 that a 737 on approach in Boeing's prescribed landing configuration could be flying at or below its crossover speed (see id.) (3) Boeing never informed USAir of this fact by the date of Flight 427's crash (see id.) and (4) USAir could have changed its procedures to minimize that risk and avoid Flight 427's crash, had it been informed. (See Gibbs Dep. 68-69, 124-25).
The Plaintiffs refer generally to several other defense experts whose depositions were taken within a few months of Judge Standish's decision. (See plaintiffs' Mem. at 2-3). Nevertheless, Kerrigan and Gibbs are the only two experts who provided the specific information upon which the plaintiffs base their request for reconsideration. See Plaintiffs' Reply Br. at 6-7).
The Plaintiffs argue that this new evidence shows Pennsylvania's predominant connection to Boeing's failure to warn USAir of the 737's risk of rudder hardover at crossover-speed. According to the Plaintiffs, the first two allegedly new facts, the 737's crossover speed when landing and Boeing's knowledge of that phenomenon, increase the significance of Flight 427's destination, Pittsburgh, Pennsylvania. According to the Plaintiffs, Flight 427 could only have crashed in Pennsylvania, its destination, because it would only have been subject to the crossover-speed phenomenon while on approach for landing.
The Plaintiffs argue that the other allegedly new facts also increase Pennsylvania's connection to Boeing's injury-causing conduct: Boeing's failure to warn USAir of the 737's risk of a rudder hardover at crossover speed and the fact that USAir could have minimized that risk. USAir maintained its central flight-training, operations-control, and maintenance facility for its fleet of Boeing 737s in Pittsburgh. (See Gibbs Dep. at 46, 51; Cox Dep. at 160). Boeing stationed technical and flight-training representatives at that facility, and communicated to USAir through its personnel there. (See Roberson Dep. at 16-19; Johnson Aff. Ex. 229).
The depositions of both James Gibbs and James Kerrigan occurred before Judge Standish issued his decision on August 17, 1999. James Gibbs was deposed on April 15, 1999, four months before Judge Standish's decision. James Kerrigan was deposed on July 15, 1999, one month before Judge Standish's decision. The Plaintiffs nevertheless argue that the information contained in those depositions was not realistically available until after August 1999, in light of this case's "several dozen witnesses and literally hundreds of thousands of pages of documents relating to extremely difficult, technical, intensely-contested issues being addressed simultaneously by counsel in different offices and different cities." (See Plaintiffs' Reply Br. at 8).
This Court cannot find that the testimony of James Gibbs was unavailable to the Plaintiffs, despite due diligence, at the time of Judge Standish's ruling. Gibbs was deposed four months before Judge Standish issued that ruling. The Court finds that under these circumstances, the Plaintiffs should have at least requested more time, pursuant to Fed.R.Civ.P. 56(f), to incorporate Gibbs' testimony into their argument. See also Navarro v. Fuji Heavy Indus., Ltd., 117 F.3d 1027, 1032 (7th Cir. 1997). The Plaintiffs did seek more time under Rule 56(f), but only to develop greater connections to California, not to Pennsylvania.
In rejecting the Plaintiffs' Rule 56(f) request, Judge Standish noted that California law, like Washington law, would also preclude the Plaintiffs' punitive-damages claims against Boeing and Parker-Hannifin. (See Johnson Aff. Ex. 1 at 12 n. 8).
Although the Plaintiffs' argument is stronger with respect to James Kerrigan, the Court finds that Kerrigan did not provide any new information. According to the Plaintiffs, Kerrigan revealed that (1) Flight 427 was very near or below its crossover speed when it crashed while in the landing configuration prescribed by Boeing, (2) Boeing knew by 1992 that a 737 on approach in Boeing's prescribed landing configuration would likely be flying at or below its crossover speed, and (3) Boeing never informed USAir of this fact by the date of Flight 427's crash. (See Kerrigan Dep. Vol. II at 97-99, 102-03).
The Court finds that information regarding the Boeing 737's crossover speed was available well before Kerrigan's testimony and Judge Standish's ruling. The National Safety Transportation Board ("NTSB") addressed the issue in a Safety Recommendation issued February 20, 1997. (See Silvernale Decl. Ex. 16 at 6-7). That Recommendation reported that "at certain airspeeds and flap settings, the lateral control system [of a Boeing 737] may not be able to counteract the roll induced by a full rudder deflection within certain portions of the airplane's approved operational flight envelope." (See id.). The Recommendation specifically stated that "at about 190 [knots] at a flaps 1 setting," as was Flight 427 when it crashed, "there was insufficient lateral control to completely counter the roll effects of a fully deflected rudder." (See id. at 7).
The NTSB also discussed the crossover-speed characteristics of Flight 427 in its Aircraft Accident Report for Flight 427. (See Silvernale Decl. Ex. 17 at 63-65). The NTSB adopted this report on March 24, 1999, over four months before Judge Standish's ruling. (See id.). In its discussion of the combined effects of a rudder hardover, crossover speed, and Flight 427's landing configuration, the report states that a Boeing 737-500 airplane at higher airspeeds of 220 to 225 knots could "easily" recover from a rudder hardover. (See id. at 65).
The report noted that this later-series 737 airplane "is approximately 8 feet shorter than the 737-300 series and requires less roll authority (ailerons and spoilers) to counter the effects of a rudder deflection. After the flight tests, Boeing adjusted the data in the 737 simulator model to account for this difference." (See Silvernale Decl. Ex. 17 at 64 n. 124).
The Plaintiffs' own expert witnesses discussed the 737's crossover-speed phenomenon in disclosures made to the Defendants before August 1999. In his expert report dated May 21, 1999, David A. Simmon stated that "[a]lthough Boeing was aware of the crossover speed problem at least as early as 1991, they failed to adequately notify the B737 operators of this problem and the potential consequences of flying below crossover speed." (See Silvernale Decl. Ex. 22 at 1-2)
In a report dated May 28, 1999, the Plaintiffs' expert Roger D. Schaufele reported that "[a]t low flap settings, associated with the initial stages of approach to landing, at the operating speeds recommended by Boeing, the 737 has insufficient lateral control authority to overcome the roll induced by a full rudder deflection hardover." (See Silvernale Decl. Ex. 23 at 1) Schaufele further stated that despite Boeing's awareness of this problem, it neither informed the airlines nor recommended changes to the 737's operating procedures to minimize the risks. (See id. at 2).
Other Plaintiffs' experts similarly addressed the crossover-speed phenomenon in reports dated before Judge Standish's August 17, 1999 decision. These other experts include (1) George E. Clarke, in his report dated May 28, 1999 (see Silvernale Decl. Ex. 25 at 5-8), (2) C. Clay Kimsey, in his report dated May 27, 1999 (see id. Ex. 26 at 3), and (3) Donald A. Kennedy, in his report dated May 27, 1999 (see id. Ex. 27 at 6) Moreover, the Plaintiffs' Steering Committee stated on April 27, 1999, in response to a Boeing contention interrogatory, that "Boeing should have told the airlines that the crossover speed of the Boeing 737 was much higher." (See Silvernale Decl. Ex. 30 at 6).
The Court concludes that ample evidence of the Boeing 737's crossover speed problems, as well as Boeing's knowing failure to disclose those problems, was available to the Plaintiffs before August 17, 1999. The Court therefore rules that the allegedly new information contained in both Gibbs' and Kerrigan's deposition testimony was in fact available to the Plaintiffs, with due diligence, at the time of Judge Standish's decision. As a result, their testimony is an insufficient basis for a reconsideration of Judge Standish's decision.
C. Clear Error
This Court may, at its discretion, reconsider Judge Standish's August 17, 1999 decision, even though "litigants [who] have once battled for the court's decision . . . should neither be required nor without good reason permitted . . . to battle for it again."Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964). A court may justifiably reconsider a prior decision in order "to correct a clear error or prevent manifest injustice." Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
The Plaintiffs argue that such a need exists here. As previously discussed, Judge Standish ruled that Washington's interests in Boeing's tortious conduct outweighed Pennsylvania's in this case. As a result, he dismissed the Plaintiffs' punitive-damages claims against Boeing as barred by Washington law. The Plaintiffs argue that this ruling was clearly erroneous for three reasons: (1) it was based in part on a finding that Flight 427's Pennsylvania crash site was fortuitous; (2) it violates a strong New York public policy against wrongful-death damages limitations; and (3) it imposes a Washington political compromise on New York citizens.
Judge Standish ruled that the location of Flight 427's crash was fortuitous and outweighed by the fact that the majority of the injury-causing conduct occurred in Washington. Punitive damages are designed to regulate defendants' conduct rather than to compensate plaintiffs. See Saxe v. Thompson Medical Co., No. 83 Civ. 8290 (JFK), 1987 WL 7362, at *1 (S.D.N.Y. Feb. 20, 1987). Consequently, New York choice-of-law rules require that courts apply the law of the jurisdiction in which the injury-causing conduct occurred. See id.
As previously discussed, Judge Standish found that "the overwhelming majority of Boeing's allegedly tortious misconduct" occurred in Washington, including Boeing's design, manufacture, assembly, certification, and delivery of the 737-300. (See Johnson Aff. Ex. 1 at 5, 18). Judge Standish also found that Boeing made all decisions in Washington relating to the 737's rudder PCUs, what changes to make to those PCUs, and, significantly, what information to provide to customers. (See id. at 5)
Judge Standish acknowledged that Pennsylvania's interest in Boeing's tortious conduct was "not insignificant" because Flight 427's crash occurred there. (See id.). He nevertheless ruled that the location of the crash was "fortuitous," and outweighed by Washington's connection to the injury-causing conduct. (See id.). In ruling that the crash site was fortuitous, Judge Standish relied on Dobelle v. National Railroad Passenger Corp. (See id. at 15-18 (discussing 628 F. Supp. 1518 (S.D.N.Y. 1986)).
In Dobelle, an Amtrak passenger traveling from New York to Pennsylvania was injured when his train collided with a loose section of rail carried by another Amtrak train heading the other way, from Pennsylvania to Connecticut. See 628 F. Supp. at 1520, 1528. Judge Peter Leisure of this district ruled that although the injury in question occurred in New Jersey, Pennsylvania law governed the punitive-damages issue because it had the greater interest in the injury-causing conduct. Id. at 1520-21. Both states' law provided for punitive damages, but New Jersey's standard was more stringent when imposing punitive damages against a corporation for the acts of its agents. See id.
The Dobelle court found that the injury's location in New Jersey was fortuitous, as "[t]he likelihood of the accident occurring in New York or Connecticut [the other states through which the hazard, not the injured passenger, was scheduled to travel] was just as great." Id. at 1529. The court further observed that "each of the states where Amtrak operates trains and engages in track and rail repair and replacement operations [has] an equally strong interest in applying its law to deter similar conduct from occurring within its borders in the future."Id. As a result, that interest favored no one state, neither Pennsylvania nor New Jersey. Id.
Consequently, Judge Leisure ruled that the issue turned on where the majority of the injury-causing conduct occurred, Pennsylvania. Id. The train carrying the loose rail was inspected in Pennsylvania, and the managerial decisions leading up to the accident occurred at an Amtrak regional headquarters in Pennsylvania. Id. at 1528-29.
Judge Standish similarly looked to where the majority of Boeing's misconduct occurred, including Boeing's managerial decisions regarding what information to provide to customers such as USAir. See Johnson Aff. Ex. 1 at 5, 18). Boeing's conduct in Washington had repercussions in this case that extended beyond Washington itself, just as the repercussions of Amtrak's conduct in Dobelle extended beyond Pennsylvania. Judge Standish likewise found that the location of Flight 427's crash was fortuitous, and applied the law of the state where the majority of the tortious conduct occurred.
The Plaintiffs state that in contrast to Dobelle, the location of Flight 427's crash was not fortuitous because it could only have occurred while on approach for landing. Nonetheless, this would only limit the potential sites of this type of crash to wherever Boeing's 737s land. A similar disaster could have equally occurred in Pennsylvania, Washington, Colorado, or any other state in which 737s approach for landings. Like inDobelle, those states all share an equal interest in preventing such tragedies from occurring inside their borders. Under these circumstances, Judge Standish was not clearly erroneous in finding that Washington had the greatest connection to the injury-causing conduct.
The Plaintiffs cite repeatedly to the District of Columbia district court's decision in In re Air Crash Disaster at Washington. D.C., which distinguished that case from the "typical fortuitous crash case." 559 F. Supp. 333, 358 (D.D.C. 1983). There, the court noted that because the allegations concerned the 737's performance on take-off, the likely crash sites were "less fortuitous" and limited to commercial airports. Id. The court further observed that Boeing could reasonably have foreseen "that its short-haul 737 aircraft would be used for flights out of Washington National Airport, one of the nation's busiest airports and a station limited by federal regulation to flights shorter than 1,000 statute miles." Id. In contrast, 737s can land at practically any airport in North America. This Court has seen no evidence demonstrating a particularly heavy concentration of 737s landing at any one airport.
Judge Standish stated in a footnote to his decision that the location of Flight 427's crash was fortuitous even though Flight 427's destination was in Pennsylvania. (See Johnson Aff. Ex. 1 at 18 n. 9). Judge Standish noted that Flight 427 flew over Illinois, Indiana, and Ohio before crashing in Pennsylvania. (Id.). This Court finds that an analysis of the fortuity of that site, as discussed in Dobelle is not limited to that particular trip of Flight 427.
The Dobelle court did not find that the interest in Amtrak's conduct was limited to the states in which the plaintiff himself traveled. See 628 F. Supp. at 1528-29. Rather, that interest was shared by any state potentially affected by that same hazard, by "each of the states where Amtrak operates trains and engages in track and rail repair and replacement operations." Id. at 1529. The court in In re Air Crash Disaster at Washington, D.C. did not find that the crash there lacked fortuity simply because that particular flight could have only crashed while on take-off from Washington National Airport. See 559 F. Supp. at 358. Rather, the court ruled that it was particularly foreseeable that 737s in general could crash there on take-off due to the circumstances of that airport. Id.
Likewise, this Court finds that PennsylYania's interest in Boeing's conduct is equal to that of other states not because Flight 427 itself flew over other states before crashing in Pennsylvania. Rather, many other states were potentially affected by that same hazard: a 737 on approach for landing while flying in flap positions one through ten at the low speed-end of its operational envelope. This type of crash, unfortunately, could have occurred in any of those states, even on that same day. Its occurrence in Pennsylvania, therefore, was fortuitous.
The Court is mindful of the fact that Washington makes no provision for punitive damages on either wrongful-death or survival claims. Pennsylvania, on the other hand, permits punitive damages on survival claims, but not wrongful-death claims. See Harvey v. Hassinger, 461 A.2d 814, 815-16 (Pa. 1983). New York permits punitive damages on both types of claims. See N.Y. Est. Powers Trusts §§ 5-4.1, 5-4.3, 11-3.2. The punitive-damages issue properly turns on a state's connection to the injury-causing conduct, not on which state makes greater provision for punitive damages.
It is undisputed that Washington does not provide for punitive damages on wrongful-death or survival claims. As noted by the Plaintiffs, the Second Circuit observed in Rosenthal v. Warren that "the strong New York public policy against damage limitations has triumphed over the contrary policies of sister states in every case where a New York domiciliary has brought suit." See 475 F.2d 438, 443 (2d Cir. 1973). Rosenthal further noted that "[t]his conclusion is particularly striking in wrongful death actions where the New York policy, embedded in a state constitutional prohibition against damage limitations, has without exception been applied in suits brought for New York decedents since [Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34 (1961)]." Id.
Nevertheless, the Rosenthal court's observation does not govern the issue of punitive damages in this case. In contrast to this case, Rosenthal involved a Massachusetts limit on total wrongful-death damages, thereby restricting a New York plaintiff's ability to seek adequate compensation. Indeed, the Rosenthal court stated that "the New York policy of fully compensating the harm from wrongful death would outweigh any interest Massachusetts has in keeping down in this limited type of situation the size of verdicts (and in some cases insurance premiums)." Id. at 445.
Moreover, the Second circuit subsequently abrogated Rosenthal in Barkanic v. General Administration of Civil Aviation of the People's Republic of China, 923 F.2d 957, 963 (2d Cir. 1991). There, the Second Circuit concluded that Rosenthal was "no longer an accurate interpretation of New York law" in the wake ofSchultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189 (1985). See Barkanic, 923 F.2d at 963. The Barkanic court affirmed the application of a Chinese limit on total wrongful-death damages, also in an air-crash situation. Id.
After Schultz, a foreign punitive-damages law must not only "violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal" expressed in New York's constitution, statutes and judicial decisions in order to be set aside as against public policy. See Schultz, 65 N.Y.2d at 202. The Barkanic court stated that "a party seeking to invoke a public policy exception to the application of foreign law `must [first] establish that there are enough important contacts between the parties, the occurrence and the New York forum to implicate [New York's] public policy and thus preclude enforcement of the foreign law.'" Id. at 964 (quoting Schultz, 65 N.Y.2d at 202). The court concluded that New York's public policy was not implicated in Barkanic because New York's only connection to the case was the fact that it was the forum state. Id.
Boeing's tortious conduct in causing the crash of Flight 427 does not implicate a New York public policy against the application of Washington law. First, that application only limits punitive damages in this case, not the Plaintiffs' ability to seek full compensation for their loss, to the extent that it is possible. As a result, it does not "violate the fundamental principle of justice" enshrined in New York's public policy against wrongful-death damages limitations. See Schultz, 65 N.Y.2d at 202. Second, New York's only connection to this case is the fact that the Plaintiffs' domicile is in New York. Although this fact is not insignificant, it is less relevant in a purely punitive-damages context, as recognized in Dobelle.
Finally, the Plaintiffs argue that by rejecting punitive damages in wrongful-death and survival actions, the Washington state legislature has compromised public safety in favor of its corporations' interests. According to the Plaintiffs, Judge Standish's application of Washington law unjustly imposes that political compromise upon the citizens of other states such as New York. New Yorkers cannot participate in Washington's political process, and therefore cannot challenge a statutory scheme that puts their lives at risk.
Washington's preclusion of punitive damages in this case does not so jeopardize the lives of New Yorkers as to create a manifest injustice. As is apparent from Barkanic, New York courts now apply foreign laws that even place limits on the total damages, compensatory and punitive, that may be imposed upon a defendant in wrongful-death actions. Moreover, although the threat of punitive damages may discourage such tortious conduct as is alleged in this case, the preclusion of that threat does not so endanger public safety as to create a manifest injustice. Especially in a federally regulated industry such as the air-travel industry, other civil and criminal regulations can similarly discourage Washington corporations, including Boeing, from acting with a "morally culpable" disregard for public safety, or with "evil and reprehensible motives." see Walker v. Sheldon, 10 N.Y.2d 401, 404 (1961).
The Plaintiffs have alleged very serious conduct on Boeing's part in this case. They have also suffered a tremendous loss. They have lost their only daughter, and they can never truly be made whole. Unfortunately, compensation is all they can seek. The law in this case does not permit them to do what they no doubt hope to do: punish Boeing to the fullest extent possible. Under the law of this case, this Court cannot grant them that. This Court can only observe that they will have their day in court. They will ultimately have their opportunity to show a jury just how much they lost when they lost their only daughter, Marla.
CONCLUSION
The Court denies the Plaintiffs' motion to reconsider Judge Standish's ruling of August 17, 1999.
SO ORDERED.