COUSINS v. SIKORSKY AIRCRAFT CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOANNE COUSINS, on behalf of the : CIVIL ACTION

ESTATE OF MATTHEW COUSINS and :

on behalf of his DOHSA beneficiaries, :

TANYA COWBROUGH, on behalf of the :

ESTATE OF ABBIGAIL COWBROUGH :

and on behalf of her DOHSA :

beneficiaries, KYLE HAGEN, on behalf :

of the ESTATE OF KEVIN HAGEN and :

his DOHSA beneficiaries, AMANDA :

MacDONALD, on behalf of the ESTATE :

OF BRENDEN IAN MacDONALD, and on :

behalf of his DOHSA beneficiaries, :

KATHRYN BOWEN, on behalf of the Est. :

of Maxime Miron-Morin and on behalf :

of his DOHSA beneficiaries, and :

MICHAEL CUSTANCE, on behalf of the :

ESTATE OF MATTHEW PYKE, and on :

behalf of his DOHSA beneficiaries :

:

v. :

:

SIKORSKY AIRCRAFT COFRPORATION :

doing business as Sikorsky, a :

Lockheed Martin Company, :

HELICOPTER SUPPORT, INC., doing :

business as Helicopter Support, Inc., a :

Lockheed Martin Company and :

SIKORSKY INTERNATIONAL :

OPERATIONS, INC., doing business as :

Sikorsky International Operations, a :

Lockheed Martin Company : NO. 23-2629

MEMORANDUM OPINION

Savage, J. September 30, 2024

Plaintiffs, representatives of the estates of six Canadian military members who

died in a helicopter crash during a training exercise off the coast of Greece, brought this

products liability action under the Death on the High Seas Act, 46 U.S.C. § 30301 et seq.,

against defendant, Sikorsky Aircraft Corporation (“Sikorsky”), a United States corporation

that designed and manufactured the helicopter. Sikorsky has moved to dismiss on forum

non conveniens grounds.1 It asserts that the case should be dismissed because the

accident killed Canadian citizens, was investigated by Canadian authorities, and the

helicopter was maintained, owned, and operated by the Canadian Air Force, which

collaborated in the design process. Sikorsky maintains that evidence critical to its defense

is in Canada and the claims implicate Canada’s national security interests. Opposing the

motion, the plaintiffs contend that the United States is the appropriate venue because the

helicopter was designed, manufactured, and assembled by Sikorsky in its United States

facilities; the Electronic Flight Control System (EFCS) that they claim caused the crash

was installed in the helicopter in Coatesville, Pennsylvania; and plaintiff’s decedent

Brenden MacDonald conducted the initial flight test at Sikorsky’s Coatesville facility.

We hold that Sikorsky has not shown that it will suffer oppression and vexation out

of all proportion to the plaintiffs’ convenience if the case is litigated in this United States

court. Balancing the private and public interest factors does not weigh in favor of

overriding the plaintiffs’ choice of forum which was based on access to the evidence

critical to proving their claims. Therefore, we shall deny the motion to dismiss.

Background2

The fatal helicopter crash occurred on April 29, 2020, off the coast of Greece.3

During a NATO training flight exercise, the helicopter’s automated flight system overrode

1 Defs.’ Mem. of L. in Supp. of their Mot. to Dismiss Pursuant to Forum Non Conveniens, ECF No.

16-1 [“Sikorsky’s Br.”].

2 The facts are drawn from the Complaint as developed in discovery.

3 Compl. ¶ 1, ECF No. 1.

the pilot’s manual controls, causing the helicopter to nosedive into the sea.

Plaintiffs are Canadian citizens. Five reside in Nova Scotia and one resides in

British Columbia.4 The decedents were Canadian military members.

Sikorsky Aircraft Corporation, a Lockheed Martin company, designs,

manufactures, assembles, repairs, services, distributes, markets, and sells helicopters.5

It performed work on the CH-148 helicopter in Florida, Connecticut, Colorado, Minnesota,

Maryland, Alabama, and Pennsylvania.6 The site of final production was Coatesville,

Pennsylvania, a facility dubbed as the “Home of the CH-148.”7

The Canadian Department of National Defense (DND) submitted requests for

proposal (RFP) to Sikorsky and other helicopter manufacturers to build the CH-148

Cyclone to replace its military maritime helicopter fleet.8 The RFP included a Maritime

Helicopter Requirements Specification (MHRS) that described the type of equipment and

capabilities required.9 The Statement of Operating Intent (SOI) explained how the Air

Force intended to use the helicopter.10

4 Id. ¶¶ 33–38.

5 Id. ¶¶ 39–40. The plaintiffs also name as defendants Sikorsky International Operations, Inc. and

Helicopter Support, Inc., subdivisions of Sikorsky Aircraft Corporation. At oral argument, defense counsel

stated that the Sikorsky subsidiaries were not involved in the design, manufacture, and testing of the CH-

148. Plaintiffs’ counsel stated plaintiffs would be willing to work out a stipulation dismissing the extraneous

entities. We use “Sikorsky” to refer to Sikorsky Aircraft Corporation as the only defendant responsible for

the CH-148.

6 Id. ¶¶ 8, 10.

7 Id. ¶¶ 9–10.

8 Id. ¶¶ 65–66.

9 Flight Safety Investigation Report § 1.18.5 (attached as Ex. A to Sikorsky’s Br.), ECF No. 16-4

[“FSIR”].

10 Id. § 1.18.5.

The RFP did not specify the EFCS.11 Sikorsky proposed inclusion of the EFCS in

its bid, suggesting it would reduce pilot workload.12 Sikorsky prepared a Maritime

Helicopter System Specification (MHSS) describing fly-by-wire and EFCS capabilities to

be incorporated into the contract.13

The DND awarded Sikorsky the contract in November 2004.14 Sikorsky delivered

the first CH-148 helicopter in 2015.15 After installation of final upgrades, it was certified

as operational in 2018.16

Sikorsky designed the CH-148 fleet to include an EFCS, a “fly-by-wire” automated

flight control program.17 To reduce the pilot’s workload, the EFCS pairs with the

helicopter’s Flight Director system to automate flight controls.18 The Flight Director system

sends signals to adjust flight controls based on a set speed, altitude, and direction.19 On

a traditional helicopter, the pilot receives inputs from the Flight Director and controls the

helicopter actuators mechanically. In a fly-by-wire system, the EFCS uses computers to

interpret the Flight Director inputs and manipulates the actuators automatically.20 When

11 Compl. ¶ 65.

12 Id. ¶¶ 12–13, 97.

13 Id. ¶ 13; FSIR § 1.18.9.

14 FSIR § 1.18.7.

15 Compl. ¶ 67.

16 CH-148 Cyclone, Lockheed Martin https://www.lockheedmartin.com/en-us/products/sikorsky-

ch148-cyclone-helicopter.html (last visited Sept. 30, 2024) (“The Canadian government approved initial

operational capability of the CH-148 Cyclone helicopter in June 2018.”); Decl. of Roger D. Lange in Supp.

of Sikorsky’s Mot. to Dismiss ¶¶ 9–10 (attached as Ex. C to Sikorsky’s Br.), ECF No. 16-4 [“Lange Decl.”].

17 Compl. ¶ 70.

18 Id. ¶ 97.

19 Id. ¶¶ 3, 98.

20 Id. ¶ 3.

“coupled” to the Flight Director, the EFCS controls the aircraft settings.21 To regain

control, the pilot “decouples” the EFCS from the Flight Director.22 He can then manually

override the EFCS.23

Sikorsky originally developed the fly-by-wire capability for commercial aircraft, the

S-92F, for use in the United States.24 The United States Federal Aviation Administration

(FAA) initiated a certification process of the technology. Sikorsky partnered with BAE

Systems,25 a Virginia based company whose New York subsidiary developed the Flight

Control Computers used in Sikorsky fly-by-wire helicopters, including the CH-148.26 Due

to lack of civilian customer interest, Sikorsky ended its fly-by-wire commercial aircraft

project.27 Consequently, the FAA ceased its certification process.28

After the Canadian Air Force approved Sikorksy’s proposal, the Directorate of

Technical Airworthiness and Engineering Support (DTAES) division of the Canadian

Technical Airworthiness Authority took over as the certifying authority.29 DTAES

developed special conditions for use of the fly-by-wire technology in military helicopters.30

21 Id. ¶ 99.

22 Id. ¶ 99.

23 Id. ¶¶ 100–01.

24 Id. ¶ 12; FSIR § 1.18.10.

25 BAE Systems is a nonparty.

26 S-92 Fly-by-Wire Advanced Flight Control System Report, at 1 (attached as Ex. K to Pls.’ Mem.

or L. in Opp’n to Defs.’ Mot. to Dismiss Pursuant to Forum Non Conveniens, ECF No. 33 [“Pls.’ Opp’n”]),

ECF No. 33-4.

27 Compl. ¶ 12; FSIR § 1.18.10.

28 FSIR § 1.18.10.

29 Id. § 1.18.11.

30 Id. § 1.18.14.

DTAES tested the fly-by-wire system in West Palm Beach and in Canada.31

The CH-148 fleet was designed at Sikorsky’s Stratford, Connecticut facility.32 It

was manufactured in West Palm Beach, Florida, and Stratford, Connecticut.33 As part of

the DTAES certification process, Sikorsky tested the CH-148 at its West Palm Beach

facility.34 It also conducted tests in Shearwater, Canada.35 The helicopter was initially

assembled and tested in the West Palm Beach facility.36 In 2015, Sikorsky delivered the

fatal helicopter to the Canadian military.37 It was one of eight helicopters in the initial

delivery (“Block 1”).38

In September 2016, the Canadian military returned the “Block 1” helicopters to

Sikorsky for planned “Block 2” upgrades to the software and structural systems.39

Sikorsky installed the “Block 2” upgrades at its facility in Coatesville, Pennsylvania.40 It

also test flew the “Block 2” CH-148 in Coatesville.41 It returned the upgraded helicopters

to the Canadian military in 2018.42 Sikorsky closed its Coatesville facility in March 2022.43

31 Lange Decl. ¶ 5.

32 Id. ¶ 4.

33 Id. ¶ 6.

34 Id. ¶ 5.

35 Id. ¶ 5.

36 Id. ¶ 7.

37 Compl. ¶¶ 48, 67.

38 Id. ¶ 48.

39 Lange Decl. ¶ 8.

40 Id. ¶ 9.

41 Id. ¶ 9. Sikorsky employees and Canadian Air Force members, including decedent Brenden

MacDonald, tested the helicopters together. Id. ¶ 12.

42 Compl. ¶ 14.

43 Lange Decl. ¶ 13.

On April 29, 2020, the decedents were conducting Canadian Air Force training

exercises in the CH-148 helicopter above the Ionian Sea off the coast of Greece.44 The

pilot attempted a “Return-to-Target” (RTT) maneuver.45 In an RTT, the helicopter reverses

course to return to a target that it has flown past.46 The maneuver requires ascending,

sharply turning, and then descending to the starting altitude.47 The pilot uses pedal and

cyclic inputs48 to change airspeed and pitch attitude (directing the nose up or down).49

In the training exercise while performing the RTT, the pilot did not decouple the

EFCS from the Flight Director, which had a set airspeed of 140 knots and altitude of 50

feet above the ocean.50 At the peak of the climbing turn, the EFCS overrode the pilot’s

manual commands and pitched the nose downward.51 The helicopter plunged into the

sea, killing all on board.52

After investigating, Sikorsky attributed the accident to a phenomenon called

Command Model Attitude Bias.53 The phenomenon occurs when the Flight Director is

coupled to the EFCS and the pilot attempts to make significant changes to the speed,

44 FSIR §§ 1.1.1–1.1.5.

45 Compl. ¶ 15; FSIR § 1.1.8.

46 Compl. ¶ 106.

47 Id. ¶ 106.

48 Pedal and cyclic inputs control the direction of the helicopter, where the nose points, and its

ascent or descent.

49 Compl. ¶ 15.

50 Id. ¶ 107.

51 Id. ¶ 109

52 Id. ¶ 5.

53 Id. ¶ 109; FSIR Synopsis, §§ 1.16.17–1.16.24.

altitude, and attitude through manual pedal and cyclic inputs.54 The EFCS tracks the

difference between the actual airspeed, altitude, and pitch attitude and the preset

airspeed, altitude, and attitude.55 Near the peak of the climbing turn as the airspeed

decreases, the EFCS adjusts attitude to build airspeed by abruptly pitching the nose

downward.56 This caused the incident helicopter to pitch downward and rapidly descend

into the sea.57

It is against this background and these facts that we must decide whether to grant

Sikorsky’s motion to dismiss the action on forum non conveniens grounds.

Analysis

Under the forum non conveniens doctrine, a district court may dismiss an action

where a court in another country is the more appropriate and convenient forum for

adjudicating the controversy. The plaintiff’s choice of forum, which should rarely be

disturbed, may be outweighed when trial in the chosen forum would cause the defendant

“oppressiveness and vexation . . . out of all proportion to plaintiff's convenience” or when

trial in the chosen forum would be inappropriate in light of “the court’s own administrative

and legal problems.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting

Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).58

54 Compl. ¶ 16.

55 Id. ¶ 108.

56 Id. ¶ 109.

57 Id. ¶ 109.

58 The relevant home forum for purposes of the forum non conveniens analysis is the United States.

Wilson v. Island Seas Investments, Ltd., 590 F.3d 1264, 1271 (11th Cir. 2009); Nat'l Union Fire Ins. Co. of

Pittsburgh, PA v. BP Amoco, P.L.C., No. 03 CIV. 0200, 2003 WL 21180421, at *9 (S.D.N.Y. May 20, 2003)

(citing DiRienzo v. Phillip Services Corp., 294 F.3d 29, 31–32 (2d Cir.2002)).

The forum non conveniens analysis consists of three steps. First, we determine

whether the proposed alternative forum is adequate. Second, if it is, we consider how

much deference to afford the plaintiff's chosen forum. Third, we balance the relevant

public and private interest factors. If, after balancing these factors, we find “that trial in the

chosen forum would result in oppression or vexation to the defendant out of all proportion

to the plaintiff's convenience,” we may dismiss the case. Windt v. Qwest Commc'ns Int'l,

Inc., 529 F.3d 183, 190 (3d Cir. 2008); Piper, 454 U.S. at 255.

The defendant has the burden of showing that there is an alternative forum and

“the private and public interest factors weigh heavily on the side of dismissal.” Lacey v.

Cessna Aircraft Co., 862 F.2d 38, 42 (3d Cir. 1988). The burden of persuasion is

significant. Id.

Adequacy of the Alternative Forum in Canada

The alternative forum is adequate if the defendants are amenable to process and

the plaintiffs’ claims are cognizable there. Piper Aircraft, 454 U.S. at n.22. If the statute of

limitations would bar the claim, the alternate forum is inadequate. Bank of Credit &

Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir.

2001). If the defendant cannot be served process, the forum is not adequate. Piper, 454

U.S. at n.22; Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir.

2003). Extreme delays in the alternate forum can also render it inadequate. Bhatnagar v.

Surrendra Overseas Ltd., 52 F.3d 1220, 1227–28 (3d Cir. 1995).

So long as the defendants are subject to service and the foreign tribunal

recognizes some form of redress, the alternative forum is considered adequate. See

Piper, 454 U.S. at n.22; dmarcian, Inc. v. dmarcian Eur. BV, 60 F.4th 119, 136 (4th Cir.

2022) (holding that a Dutch court's inability to effectively adjudicate American trademark

law claims disqualified it as an adequate forum). This is so even where certain theories

of recovery or damages more favorable to the plaintiff are unavailable. For example, the

Supreme Court held, in Piper, that although the foreign forum did not provide a strict

liability cause of action and the potential damages were less, the forum was not

inadequate. 454 U.S. at 254–55. There was “no danger that they [would] be deprived of

any remedy or treated unfairly.” Id. at 255.

That the substantive law in the alternative forum is less favorable to the plaintiffs

does not render that forum inadequate. Piper, 454 U.S. at 247, 254–55. A difference in

the substantive law is not given substantial weight. Id. at 247. However, if the alternative

forum does not permit litigation of the dispute or the remedy provided is “so clearly

inadequate or unsatisfactory that it is no remedy at all,” the difference in the law may be

given substantial weight. Trotter v. 7R Holdings, Inc., 873 F.3d 435, 440 (3d Cir. 2017)

(quoting Piper, 454 U.S. at 254).

The plaintiffs’ products liability claims are cognizable in the Canadian courts.59

Nova Scotia60 recognizes causes of action for design defect, manufacturing defect and

failure to warn.61 Suit may be brought for the benefit of the estate of a deceased person

under the Survival of Actions Act and for the benefit of certain family members of the

59 Aff. of Hon. Ian Binnie, C.C., K.C. ¶¶ 22–26 (attached as Ex. J to Sikorsky’s Br.), ECF No. 16-4

[“Binnie Aff.”].

60 The parties agree that if the litigation were to proceed in Canada, the relevant forum would be

Nova Scotia, where five of the six plaintiffs reside and the Canadian military base which housed the CH-

148 is located.

61 Id. ¶¶ 25–26.

deceased under the Fatal Injuries Act.

There is no question that the law in Nova Scotia is less favorable to the plaintiffs.

There is no strict liability cause of action and no punitive damages available. Nonetheless,

because Sikorsky is amenable to process and the plaintiffs can obtain relief there, the

plaintiffs will not be shut out of the Canadian court if the case is litigated there. Thus, Nova

Scotia is an adequate alternative forum.

Deference Due Plaintiffs’ Choice of Forum

Having determined that Nova Scotia is an adequate alternative forum, we assess

the deference to accord the plaintiffs’ choice of forum. A strong presumption of

convenience exists in favor of a domestic plaintiff's chosen forum. But, a foreign plaintiff’s

choice deserves less deference. Windt, 529 F.3d at 190 (quoting Piper Aircraft, 454 U.S.

at 256). A foreign plaintiff can bolster the choice by making a strong showing of

convenience. Id. (quoting Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628, 634 (3d

Cir. 1989)).

In determining the deference due the foreign plaintiffs’ choice of forum, we

consider the circumstances of the litigation, including whether the chosen forum has a

substantial relationship to the parties and the events involved in the case. Compare Lony,

886 F.2d at 634 (fact that the foreign plaintiff’s chosen forum was the defendant’s state

of incorporation, where the defendant’s corporate headquarters, headquarters of the

division in question, research laboratories and bulk of liability evidence were located, and

where the conduct that caused the alleged injury occurred, had “considerable weight in

showing that the plaintiffs’ choice was based on convenience”), with Windt, 529 F.3d at

191 (where chosen forum was not home of two defendants, evidence was not

concentrated there and an insubstantial amount of conduct gave rise to the dispute there,

and plaintiffs were Dutch residents serving as representatives of an insolvent Dutch

company, district court properly accorded the plaintiffs’ choice of forum a low degree of

deference).

Sikorsky argues that plaintiffs’ choice of forum should be afforded limited

deference because they are Canadian citizens and their only connection to Pennsylvania

is that their attorneys are located in this district.62 It also contends that the plaintiffs are

forum shopping for a higher damages award and litigation advantages unavailable in

Canada.63 Finally, it argues that because Sikorsky closed its Coatesville facility in 2021,

there are no potentially relevant documents subject to litigation in this district.64

The plaintiffs counter that their choice of forum should be given significant weight.

They contend that critical evidence necessary to prove their case is in the United States

where the CH-148 was designed, manufactured, and assembled.65 They accuse Sikorsky

of wanting to move the case to Canada for their own forum shopping reasons. They urge

us to view the domestic defendant’s motion for dismissal for forum non conveniens with

skepticism.66 They cite Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001)

(finding because “defendants also may move for dismissal under the doctrine of forum

non conveniens not because of genuine concern with convenience but because of similar

62 Sikorsky’s Br. 19.

63 Id. at 19.

64 Id. at 20.

65 Pls.’ Opp’n 30.

66 Id. at 31.

forum-shopping reasons,” courts should “arm themselves with an appropriate degree of

skepticism in assessing whether the defendant has demonstrated genuine inconvenience

and a clear preferability of the foreign forum”); Frederiksson v. HR Textron,Inc., 484 F.

App’x 610, 612–13 (2d Cir. 2012) (“[W]hen an American defendant claims that a foreign

forum is more convenient than a home forum, some suspicion of forum shopping [on the

defendant’s part] must arise.”); In re Air Crash at Taipei, Taiwan on Oct. 31, 2000, 2003

WL 25781233, at *1 (C.D. Cal. Mar. 27, 2003) (“[C]ourts generally view with suspicion

[FNC motions] when brought by a domestic defendant.”).

A foreign plaintiff's choice of forum is still entitled to some weight. See Lacey, 932

F.2d at 175. Although a foreign plaintiff’s choice typically deserves less deference, there

is a presumption that it is for convenience. “The focus of the deference inquiry. . .is on

convenience, not on the particular significance of a party's residence or citizenship or a

party's ability to invoke a United States court's jurisdiction.” Kisano Trade & Invest Ltd. v.

Lemster, 737 F.3d 869, 875 (3d Cir. 2013).

Here, the most significant liability evidence is in the United States, including

evidence of the design and manufacture of the EFCS system and the CH-148 helicopter.

Although Sikorsky’s facilities in different states played a part, essential activities took

place at its Coatesville plant. The Coatesville facility was touted as the “home of the CH-

148.”67 Plaintiffs contend that the connection to the Eastern District of Pennsylvania is

“critical” because “the defective product was completed here and distributed into the

67 Compl. ¶ 8.

stream of commerce from the Eastern District.”68 They emphasize that Sikorsky upgraded

the helicopter’s software and structural systems at the Coatesville facility.69 That work

took two years.70

That plaintiffs’ counsel’s office is located in the forum is usually discounted in

considering the deference to be given to plaintiffs’ choice of forum. Kisano, 737 F.3d at

876. However, the choice is entitled to more deference where relevant evidence and the

defendant are in the forum. In that case, the plaintiffs’ choice of forum is driven by

consideration of convenience, increasing the deference given the foreign plaintiffs. See

Lony, 886 F.2d at 634.

In summary, the foreign plaintiffs’ choice is not entitled to a strong presumption of

convenience. Nevertheless, because the defendant has a connection to the plaintiffs’

chosen forum and the plaintiffs have demonstrated that their choice was based on

convenience, their choice deserves more deference than is typically given a foreign

plaintiff. Therefore, we shall accord the foreign plaintiffs’ choice of forum less deference

than is given to a domestic plaintiff and more than is usually given a foreign plaintiff.

Private and Public Interest Factors

Having determined that Canada is an adequate foreign forum and that the

plaintiffs’ choice of forum is entitled to more deference than typically given to a foreign

plaintiff, we must weigh and balance the private and public interest factors. The private

interest factors consider the convenience of the litigants, and the potential

68 Pls.’ Opp’n 17.

69 Compl. ¶ 48.

70 Pls.’ Opp’n 17.

oppressiveness and vexation to the defendant. The public interest factors consider the

demands on the court system in each forum and the burden on the respective factfinder

or jury. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947).

Private Interest Factors

The private interest factors are: (1) the relative ease of access to sources of proof;

(2) the availability of compulsory process for attendance of unwilling witnesses, and the

cost of obtaining attendance of willing witnesses; (3) a view of the premises, if appropriate;

and (4) other practical problems that make trial of a case easy, expeditious and

inexpensive. Windt, 529 F.3d at 189 (quoting Gilbert, 330 U.S. at 508).

The first and second factors—access to sources of proof and availability of

compulsory process—are intertwined. Both go to marshalling the evidence.

The fatal incident happened in international waters off the coast of Greece. The

decedents resided in Canada and were members of the Canadian military. The CH-148

was designed and manufactured for the Canadian National Defense. It was designed and

manufactured in facilities in Florida, Connecticut, and Pennsylvania. It was upgraded,

tested, and deemed operational in Coatesville, Pennsylvania.

Given these connections, which forum affords easier and more convenient access

to the evidence? Will litigating in this forum cause the defendant oppression and

vexation? In answering these questions, we consider what is the more significant

evidence and the more contested evidence.

The focus of the liability inquiry is on what was done in the United States, not in

Canada. Sikorsky designed, manufactured and delivered the helicopter in the United

States. It installed final upgrades to the operation system and tested the helicopter in

Coatesville.

Whether the case is litigated here or in Canada, both sides will have difficulties

getting the evidence they need. The difficulties are likely to cause delays and require

more effort than is encountered in a case having connections to only one nation. The

obstacles are not insurmountable.

The plaintiffs blame the cause of the crash on the fly-by-wire technology, a

component of the CH-148 that Sikorsky promoted and incorporated into the navigation

system. The plaintiffs’ design defect claim centers on the EFCS’s Command Model

Attitude Bias. Sikorsky does not disagree.

The critical facts regarding the design of the helicopter and the EFCS are the most

significant in determining liability. Witnesses include former and current Sikorsky

employees and BAE Systems employees. They reside in the United States. Experts

opining on the design, manufacturing, and testing are also based in the United States.71

Those involved in the design and development of the CH-148 worked in Sikorsky’s

facilities in Florida, Connecticut, and Pennsylvania. The two-year upgrade to the CH-148

was performed at the Coatesville facility. The Block 2 upgrade, the final production step,

was completed there. At oral argument, defense counsel confirmed that the Block 2

upgrades were part of the production process and that the upgrades included “mission

critical components.” Counsel verified that the CH-148 was delivered from Coatesville

following the Block 2 upgrades, the final step deeming the helicopter operational before

Canada certified it.72 Before that, the helicopter was not capable of landing on an aircraft

71 Id. at 39–40.

72 According to Lockheed Martin’s website, the “Canadian government approved initial operational

carrier as contemplated and specified.73

The BAE Systems employees who worked on the EFCS at its New York facility

are undoubtedly essential witnesses. Their knowledge of the development and

construction of the EFCS that Sikorsky incorporated into the helicopter goes to the heart

of the cause of the crash. What BAE revealed to Sikorsky about the EFCS’s capabilities,

limitations, and testing is critical evidence.

BAE is currently a non-party. Its records and employees are beyond the reach of

the Canadian court.

Sikorsky offers to make available in Nova Scotia employees “under its control.”

This offer is not a guarantee that the witnesses who worked on the design and have

knowledge of its development will be available in Nova Scotia. First, former employees

possessing this essential knowledge are not under Sikorsky’s control. Second, the

Canadian forum is not convenient for current and former employee witnesses. According

to Sikorsky, witnesses who worked on the project in Coatesville either retired or were

transferred to other Sikorsky facilities in the United States. They would have to travel

beyond the border if the case is litigated in Nova Scotia. Paying the expenses of

capability of the CH-148 Cyclone helicopter in June 2018.” CH-148 Cyclone, Lockheed Martin,

https://www.lockheedmartin.com/en-us/products/sikorsky-ch148-cyclone-helicopter.html (last visited Sept.

30, 2024). Sikorsky’s Project Engineer Principle Roger Lange confirmed that the Canadians conducted

final testing and approval after the CH-148 underwent the Block 2 upgrade at Coatesville. Lange Decl. ¶¶

9–10.

73 To minimize any connection to its Coatesville facility, Sikorsky emphasizes that the Coatesville

facility closed more than two years ago. Documents that were there have been moved to other facilities.

Sikorsky’s Br. 22. Paper copies of relevant Sikorsky documents may have been transferred to other

Sikorsky facilities. That does not present an inconvenience. They are available wherever they are. The

days when producing documents required searching for and retrieving documents from boxes of records

are gone. Now, one may locate responsive documents with the stroke of a computer key. Documents are

regularly transferred electronically intra-company from one location to another. Thus, the location of

documents does not inform the ease of access to evidence analysis.

Sikorsky’s former and current employees does not eliminate the inconvenience of their

travelling to and from Canada. Third, former employees involved in the CH-148 program

cannot be compelled to appear and testify in Nova Scotia. In the United States, they can

be subpoenaed.

Another hurdle in obtaining access to evidence is governmental limitations on

disclosure of national defense related information. Canada has restrictions shielding

sensitive information from discovery. The United States has its protections. Neither

absolutely forbids release of the information. Both impose strict requirements a party must

satisfy before the information sought can be released. Both involve a lengthy process.

Section 38 of the Arms Control Export Act authorizes the executive branch of the

United States government to control the export and import of defense products and

services, including technical data, "[i]n furtherance of world peace and the security and

foreign policy of the United States." 22 U.S.C. § 2778(a)(1). Pursuant to this authority, the

Department of State has issued the International Traffic in Arms Regulations (ITAR), 22

C.F.R. §§ 120-130 (1995). The US Munitions List (USML), 22 C.F.R. § 121, enumerates

the articles, products, or services subject to ITAR restrictions.

Plaintiffs have submitted an affidavit from attorney Johanna Reeves, whose

practice concentrates on advising United States companies on export and import matters

subject to national security regulations, including ITAR regulations. Reeves opines that

“because the CH-148 was designed and manufactured for a military application, the

aircraft and some of the major parts and components (e.g., the EFCS) are subject to the

ITAR.”74

The Directorate of Defense Trade Controls (DDTC) is tasked with managing the

ITAR regulations, including reviewing requests to export technical data. The release of

technical ITAR-controlled data from the United States to Canada or the retransfer of data

within Canada requires authorization from the DDTC, typically in the form of a license.75

Reeves enumerates the three types of DDTC authorizations: licenses,

agreements, and exemptions. Licenses “authorize[] the export of a defined set of items

to a defined group of end-users, for a specific purpose and is typically issued for a 4-year

period.”76 Reeves notes that the DDTC generally does not issue a license for technical

data.77 Agreements, such as a Technical Assistance Agreement (“TAA”), allow the DDTC

to approve the export of defense services or the exchange of technical information in

advance.78 TAAs are typically issued in arbitration to allow the parties to exchange

technical information to resolve disputes.79 Applications for TAAs require detailed

descriptions of the information to be transmitted and signatures of the foreign party

recipients.80 All recipients must be specifically named in the agreement as licensees, and

any other parties that may receive the information must be named as sublicensees.81

74 Decl. of Johanna Reeves ¶ 16 (attached as Ex. G to Pls.’ Opp’n), ECF No. 33-2 [“Reeves Decl.”].

75 Id. ¶¶ 9-10.

76 Id. ¶ 15.

77 Id.

78 Id. (citing 22 C.F.R. § 120.57(e)).

79 Id.

80 Id.

81 Id.

Exemptions allow for exports without a license for narrowly defined articles or data.82

Reeves concludes that the licensing and agreement processes may cause a

“significant time delay” because each requires review by bureaus within the Department

of State, the Department of Defense, and other U.S. government agencies with an interest

in the exchange of the information.83 The authorization process applies to both initial

export requests and the retransfer and reexport of U.S. defense articles, services, or

technical data within Canada.84 Reeves notes that the State Department “may deny an

application for ever-shifting national security or foreign policy reasons.”85

Plaintiffs sent a preservation request to the DND for the recovered portion of the

wreckage, the flight recorder data, and cockpit recording.86 DND representative Captain

Marie-Elaine Bernier advised that the wreckage and data are ITAR-restricted.87 Captain

Bernier explained that Sikorsky is the only point of contact for handling the evidence and

that “it will have to be disposed in the [United States].”88

Sikorsky labeled 4,500 of the 9,500 documents produced in the forum non

conveniens discovery as “export controlled.”89 As Reeves explains, the party seeking to

export this information will need a license from the DDTC.90 The licensing process goes

82 Id.

83 Id. ¶ 18.

84 Id. ¶ 21.

85 Id. ¶ 19.

86 Pls.’ Opp’n 53; May 2023 Emails Between Jamie Thornback and Captain Marie-Elaine Bernier

(attached as Ex. I to Pls.’ Opp’n), ECF No. 33-2.

87 Id.

88 Id.

89 Reeves Decl. ¶ 13 n.14.

90 Id. ¶ ¶ 14, 17.

through a lengthy and multi-layered process. The application is reviewed and must be

approved by various bureaus within the Department of State, Department of Defense or

other U.S. agencies having an interest in the documents.91

Reeves opines that absent approval, the plaintiffs will be prohibited from sharing

export-controlled documents with Canadian legal counsel, experts, and witnesses.92 She

notes that license approvals are not guaranteed and could be denied by the State

Department for national security or foreign policy reasons.93 She explains that export-

controlled information already shared between Sikorsky and the Canadian DND would

require a new DDTC license to be “retransferred” and used in litigation.94

The parties may request an ITAR export license from the DDTC to access and

release the military technology information needed to prosecute the case in Canada. The

DDTC could deny a license. Even if the parties received a license, the approval process

would be lengthy and costly. The ITAR would impede the plaintiffs in getting evidence for

use in Canadian litigation. Sikorsky would face that impediment as well.

Sikorsky argues it will have difficulty in getting evidence relevant to its potential

defenses if the case remains here.95 It acknowledges that “all U.S.-based evidence

relevant to the Plaintiffs’ claims is in [its] possession.”96 But, it argues that evidence in

Canada relevant to its defenses is in the possession of non-parties and getting it would

91 Id. ¶ 18.

92 Id. ¶ 17.

93 Id. ¶ 19.

94 Id. ¶ 20.

95 Sikorsky’s Br. 21–22.

96 Id. at 21–22.

be significantly costly.

Sikorsky contends that essential evidence relative to a potential defense of

contributory negligence is “almost exclusively” in Canada.97 This includes evidence of the

Canadian Air Force training policies instructing pilots on the RTT maneuver, and the

maintenance records from 2018 when the fleet was delivered until the incident.98

The flight recorder and the wreckage are in Canada. The recorder can easily be

duplicated electronically and transmitted anywhere. The wreckage may be used to

demonstrate the violence of the crash, but it does not explain why the CH-148 crashed.

Photographic evidence will suffice to show the condition of the wreckage.

Damages witnesses are all in Canada. The decedents were in the Canadian

military and resided in Canada. Family members, employers and military colleagues,

accountants and those with knowledge of the relationships between the decedents and

their beneficiaries reside in Canada.99

Some potential defense witnesses are or were employed by the Canadian Air

Force and government agencies in Canada.100 They include CH-148 operation

supervisors, military pilot trainers and supervisors, eyewitnesses to the crash, civilian and

government employees involved in the DTAES certification process, military personnel in

charge of maintaining and operating the CH-148, and the accident investigators.101

97 Id. at 23.

98 Id. at 23. At oral argument, defense counsel conceded that maintenance of the CH-148 did not

play a role in the crash.

99 Id. at 26; Defs.’ Mem. of L. in Reply to Pls.’ Opp’n to Their Mot. to Dismiss Pursuant to Forum

Non Conveniens 14, ECF No. 36 [“Sikorsky’s Reply”].

100 Id. at 26–27.

101 Id.

Given that witnesses relevant to Sikorsky’s potential defenses reside in Canada

and some are in the Canadian military, the Canada Evidence Act affects its efforts to get

this evidence.

Pursuant to Section 38 of the Canada Evidence Act, litigants who possess

“sensitive” or potentially injurious” information bearing on Canadian international

relations, national defense or national security must obtain permission from the Canadian

government before disclosing that information in a legal proceeding. Canada Evidence

Act, RSC 1985, c. C-5, s. 38.02(1)–(2). Under Section 38, a litigant must notify the

Attorney General of possible disclosure of sensitive information. Id. at s. 38.01(1). The

Attorney General has ten days to decide whether to allow disclosure. Id. at s. 38.03(3). If

the Attorney General denies permission or fails to respond within ten days, the litigant

may appeal to the Federal Court of Canada. Id. at s. 38.04(2).

The Federal Court may prohibit disclosure, authorize partial or full disclosure,

impose conditions, or authorize disclosure of a summary of the information. Id. at s.

38.06(1)–(3). In reviewing an application for disclosure under Section 38, a judge

considers whether the information would be injurious to international relations, national

defense or national security and whether the public interest in disclosure outweighs the

public interest in nondisclosure. Id.

Sikorsky’s expert, a former Justice of the Supreme Court of Canada, Honorable

William Ian Corneil Binnie, concludes that in either forum, the production of evidence

created or possessed by the Royal Canadian Air Force is subject to the discovery

procedure prescribed in Section 38 of the Canadian Evidence Act, RSC, 1985, c. C-5.102

He opines that “the DND would be concerned about disclosure of information related to

the design, capabilities and performance of the CH-148 helicopter because it is a military

aircraft, presently in service, as well as issues relating to the training and performance of

air crew.”103 Discovery of this sensitive information would be subject to the Section 38

disclosure process.104 He does not offer an opinion whether disclosure would be

permitted.

The Canada Evidence Act restrictions on national security evidence apply

wherever the case is tried. Sikorsky’s argument that the Canadian government is less

likely to allow disclosure of sensitive information in a foreign proceeding than in a

domestic proceeding is speculation.105 No expert has opined how the Canadian

government would likely decide.

Assuming the Canadian government authorizes release of the DND evidence for

use in this case and the litigation proceeds in this forum, the parties can obtain evidence

from Canadian witnesses through letters rogatory. Sikorsky argues this process is

cumbersome and costly.106

A letter rogatory “is the request by a domestic court to a foreign court to take

evidence from a certain witness.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.

102 Binnie Aff. ¶¶ 83–84.

103 Id. ¶ 85.

104 Id. ¶¶ 96–97.

105 At oral argument, defense counsel acknowledged that he does not know whether the Canadian

government would permit disclosure of information under the Canada Evidence Act.

106 Sikorsky’s Br. 24.

241 n.1 (2004). Federal courts may, upon motion, issue letters rogatory enabling a U.S.

litigant to obtain discovery from a non-party in a foreign jurisdiction. Fed. R. Civ. P. 28(b).

The court may then send the letters rogatory to the foreign court to request enforcement.

28 U.S.C. § 1781(b)(2) (authorizing “the transmittal of a letter rogatory or request directly

from a tribunal in the United States to the foreign or international tribunal”).

In Canada, enforcement of letters rogatory from American courts is governed by

the Canada Evidence Act and the law of the province in which discovery is sought. In this

case, the relevant provincial law is the Nova Scotia Evidence Act. When a Canadian court

receives letters rogatory from a foreign tribunal, it may order the examination under oath

or the production of documents from the person or entity named in the request. Canada

Evidence Act, R.S.C., 1985, c. C-5, s. 46; Nova Scotia Evidence Act, R.S.N.S., 1989, c.

155, s. 70.

To give effect to letters rogatory, a Canadian court must first determine if the

statutory preconditions are met, that is, a foreign court of “competent jurisdiction,” in a

matter pending before it, authorized discovery from a person within the Canadian court’s

jurisdiction. See Canada Evidence Act, R.S.C., 1985, c. C-5, s. 46; Nova Scotia Evidence

Act, R.S.N.S., 1989, c. 155, s. 70; Zingre v. The Queen et al., 2 S.C.R. 392, 405–06 (Can.

1981). If these preconditions are met, the Canadian court may, in its discretion, grant or

deny the discovery request. In exercising its discretion, the Canadian court may consider

whether: (1) the evidence is relevant; (2) the evidence is necessary for trial and will be

adduced at trial, if admissible; (3) the evidence is not otherwise obtainable; (4) the order

is not contrary to public policy; (5) the documents are identified with reasonable

specificity; and (6) the order will not be unduly burdensome on the person or entity

providing discovery. Cytozyme Laboratories Inc. v. Acadian Seaplants Limited, 2018

N.S.S.C. 137, ¶ 23 (Can. N.S. Sup. Ct. 2018); Lantheus Medical Imaging Inc. v. Atomic

Energy of Canada Ltd., 115 O.R. 3d 161, ¶ 60 (Can. Ont. C.A. 2013).

Canadian courts adopt a “liberal approach” to enforcing letters rogatory from U.S.

courts. District Court of United States, Middle District of Florida v. Royal American Shows

Inc., 1 S.C.R. 414, 421 (Can. 1982); Sunline USA LLC v. Ezzi Grp., Inc., No. CV 22-1650,

2023 WL 9004919, at *5–6 (E.D. Pa. Dec. 28, 2023) (finding that the need for significant

Canadian discovery did not warrant dismissal on forum non conveniens grounds, given

Canada’s “accommodating posture” toward enforcing letters rogatory from the United

States).

Plaintiffs challenge Sikorsky’s contention that it would be more convenient to

litigate its potential defense of contributory negligence against the DND in Canada.

Plaintiffs rely on the expert affidavit of former Canadian judge, Honorable Michael L.

Phelan.107 He explains that the DND, as an entity of the Crown, cannot be a party in either

the United States or Canada.108 Phelan explains that the Crown Liability and Proceedings

Act (“CLPA”), provides tort immunity to the DND where the cause of action arises out of

an incident for which it has already paid pension benefits or compensation.109 He

explains:

The CLPA in s. 9 provides that no proceedings lie against the Crown if a

pension or compensation has been paid or is payable by the federal

government in respect of the death, injury or loss in respect of which the

claim is made. . . . The bar of the claim arises so long as the pension or

107 Aff. of Hon. Michael L. Phelan (attached as Ex. B to Pls.’ Opp’n), ECF No. 33-2 [“Phelan Aff.”].

108 Id. ¶ 10.

109 Id. ¶ 19.

payment is on the specific basis of the occurrence giving rise to the claim;

all damages arising out of the incident which entitles the person to a pension

will be subsumed under the bar in s.9.”110

Phelan concludes that because the Canadian government paid compensation to the

decedents’ families, they cannot bring a claim for damages against it.111 Phelan also

concludes that Sikorsky “could neither seek contribution from DND nor seek to reduce

the extent of their own responsibility to pay damages to the plaintiff by seeking a finding

as to the degree of fault, if any, of DND.”112

Phelan opines that the DND’s immunity under the CLPA also insulates it from

discovery in proceedings in which it is not a party.113 He opines that because the Crown

is not a party, DND officials, as representatives of the Crown, cannot be compelled to

appear for depositions.114 He references the Canadian Supreme Court decision in

Canada (Attorney General) v. Thouin, 2 S.C.R. 184 (Can. 2017).115 He concludes that if

the case were to proceed in Nova Scotia, the DND would be immune from documentary

and oral discovery.116

Sikorsky’s expert Binnie disagrees. He opines that, under Thouin, the Crown “may

still be subject to disclosure of relevant documents.”117 He also concludes that although

110 Id. ¶¶ 11–12 (internal quotations omitted).

111 Id. ¶ 19.

112 Id. ¶ 26.

113 Id. ¶ 32.

114 Pls.’ Opp’n 47 (citing Phelan Aff. ¶¶ 27-34).

115 Phelan Aff. ¶ 31.

116 Id. Phelan acknowledges that at least one Canadian court has suggested that the Crown, as a

nonparty, may still be compelled to produce documents within its possession. Id. ¶ 33. Phelan considers

this position to be wrong as a matter of law. Id.

117 Suppl. Aff. of the Hon. Ian Binnie ¶ 6 (attached as Ex. A to Sikorsky’s Reply), ECF No. 37

DND representatives may not be deposed, they can be subpoenaed to testify at trial if the

case proceeds in Canada.118

Discovery depositions of DND employees would be unavailable in Canada. The

process Sikorsky argues would make getting evidence in Canada relevant to its defense

is no less costly whether the case is litigated in the United States or Canada. The

evidence is with the DND, a non-party. The DND cannot be added as a defendant in the

United States or Canada. The Canadian government cannot be sued pursuant to Section

9 of Canada’s CLPA.

Canada and its representatives may be immune from tort liability and its

representatives may not be compelled to submit to pretrial discovery. That does not mean

Sikorsky cannot blame them, in full or in part, for causing the crash. Sikorsky cannot join

them as defendants and recover any damages from them.

The experts disagree whether DND persons can be compelled to produce

documents and submit to depositions before trial. They agree they can be compelled to

testify at trial if the case proceeds in Canada.

The parties disagree whether DND officials can be compelled to provide trial

testimony if the case proceeds in the United States. Sikorsky argues Canadian witnesses

cannot be compelled to attend trial in Pennsylvania because it is beyond the 100-mile

limit of this court’s subpoena power.119 Plaintiffs argue that the parties can use the letters

rogatory process to compel “videotaped or live video feed trial testimony” from DND

[“Suppl. Binnie Aff.”].

118 Id. ¶ 6.

119 Sikorsky’s Br. 22.

witnesses located in Canada.120 They cite Lantheus Medical Imaging Inc. v. Atomic

Energy of Canada Ltd., 115 O.R. 3d 161, paras. 5, 71, 77–79, in which the Ontario Court

of Appeal enforced the Southern District of New York’s letters rogatory requesting

document production and oral testimony of Crown agents for use at trial.121 Neither party

produced expert opinion regarding whether a Nova Scotia court would enforce letters

rogatory seeking DND testimony for use at trial in the United States.

Even if Sikorsky is able to obtain deposition or trial testimony from the DND, it will

be subject to restrictions under Section 38 of the Canada Evidence Act. Limitations on

obtaining evidence from the DND exist in either forum. So, Sikorsky cannot complain that

the difficulty in getting evidence is unique to litigating the case here.

The cost for willing witnesses to attend trial and the methods available for

compelling the attendance of unwilling witnesses cuts both ways. One party will be more

burdened than the other depending on whether the case is litigated here or in Nova

Scotia.

Liability witnesses are in the United States. If the case is tried in Canada, plaintiffs

will have to obtain their testimony through letters rogatory. ITAR regulations may delay or

restrict the production of protected evidence in a Canadian proceeding.

On the other hand, some of the witnesses regarding DND’s collaboration in the

manufacturing process and its use of the CH-148 are in Canada and will not be readily

available. Damages evidence and witnesses are located in Canada. If the case proceeds

120 Pls.’ Opp’n 47.

121 Id.

here, Sikorsky will have to obtain defense-related evidence from Canada through letters

rogatory. The DND’s immunity from liability and nonparty discovery and restrictions under

the Canada Evidence Act will apply with equal force in either forum.

The first and second private interest factors—access to sources of proof and

availability of witnesses—weigh in favor of the plaintiffs. There are conveniences and

inconveniences in both fora for both sides. The most critical evidence is in the United

States where Sikorsky is located and where it is accessible to plaintiffs.

With respect to the third factor, there is no suggestion that the environment or

conditions were unique to the crash site. There was nothing peculiar to the crash site that

would require a view of the crash scene. Neither party suggests otherwise.

Evidence of the crew’s final moments is not found in the CH-148 wreckage. It is in

the flight data recorder and the cockpit voice recorder, which are in possession of the

Canadian DND. The data recovered from the helicopter’s flight data recorder is in the

United States and Canada. Sikorsky relied on it to reconstruct the accident and uncover

the Command Model Attitude Bias phenomenon. The Canadian government has the

cockpit voice recorder,122 which can be electronically transferred to the United States.

The fourth private interest factor weighs practical considerations that would make

trying the case easy, inexpensive, and expeditious. Sikorsky argues that because there

is pending litigation in Nova Scotia by an air force member who witnessed the accident,

which also alleges faulty design, testing and incomplete inspection of the helicopter, it

would be oppressive and vexatious for Sikorsky to litigate the two cases in different

122 Sikorsky’s Br. 30 n.34; Pls.’ Opp’n 53.

fora.123

Although the lawsuit pending in Nova Scotia involves the same crash, it is different.

The parties to the lawsuit in Canada are not the same as the parties in this action. The

cases will not be litigated together. Sikorsky will have to try two cases no matter where

they are tried. There is no discernable inconvenience in trying the two cases in different

fora.

The plaintiffs argue that if the case is tried in Canada, they would be precluded

from introducing the FSIR, which examined and opined on the cause of the accident.

They point to the Canadian Aeronautics Act, R.S.C., 1985, c. A-2, which makes

Airworthiness Investigative Authority opinion evidence inadmissible in legal

proceedings.124

Plaintiffs’ expert Barry Mason, a Canadian civil litigator who is a former member of

the Discovery Rules Committee and current member of the Bench and Bar Rules

Committee, explains that the Canadian rules of evidence require experts to certify their

opinions to a degree of certainty. Mason opines that “it would be exceedingly difficult, if

not impossible, to persuade a government official to sign the necessary certification and

. . . . [m]ost often, experts of this nature, refuse or are not permitted to engage in a private

civil matter.”125 Plaintiffs argue that because the parties cannot depose members of the

Canadian Armed Forces whether the case is litigated here or in Canada, the FSIR “takes

123 Sikorsky’s Br. 30–31.

124 Pls.’ Opp’n 49.

125 Aff. of Barry Mason ¶ 127 (attached as Ex. O to Pls.’ Opp’n), ECF No. 33-5 [“Mason Aff.”].

on added importance”.126

Sikorsky disagrees. It argues that the use of the FSIR “would not vary significantly”

if the case is tried in Canada or the United States.127 Responding to Mason’s affidavit,

Sikorsky’s expert Binnie opines that the facts in the FSIR report would be admissible at

trial in Nova Scotia and they could be relied on by experts for the purposes of expert

testimony.128 He also stated that under Canadian law, the FSIR investigator could be

compelled to testify about his observations and results of the investigation.129

Differences in rules allowing or disallowing certain evidence are not considered in

the analysis of private interests. They may be relevant in determining the adequacy of the

alternative forum. They are not a convenience factor. Hence, we do not consider them in

our analysis.

Public Interest Factors

We turn to the public interest factors. They include court congestion, the forum’s

interest in having local disputes decided “at home,” the interest in having the case decided

in the forum whose law will govern the case, the avoidance of unnecessary conflict of

laws problems, and the unfairness of burdening citizens with jury duty in a forum having

no relationship to the dispute. Windt, 529 F.3d at 189 (citing Gilbert, 330 U.S. at 508-09).

The first public interest factor is the “administrative difficulties flowing from court

congestion.” Windt, 529 F.3d at 189 (citing Gilbert, 330 U.S. at 508). We look at the

126 Pls.’ Opp’n 50.

127 Sikorsky’s Reply 9.

128 Suppl. Binnie Aff. ¶¶ 18-19.

129 Id. ¶¶ 20–25.

relative congestion of the dockets in Nova Scotia and the Eastern District of Pennsylvania.

As of June 30, 2024, the Eastern District of Pennsylvania had an average of 382

pending cases per judgeship.130 The median time from filing to trial of a civil case in the

Eastern District of Pennsylvania is 27.1 months.131 This judge has 112 pending civil cases

and the median time from filing to trial is 13 months.132

According to Sikorsky’s expert, Adam L. Harris, the “typical length of a trial from

start to finish” in Nova Scotia is one and a half to two years.133 The plaintiff’s expert, Barry

Mason, disagrees. Mason, a personal injury litigator practicing in Nova Scotia,134

estimates that given the need for substantial discovery, compelling the attendance of

witnesses outside Canada, and the potential for evidentiary disputes in a complex

wrongful death action, the case would take five to eight years to resolve in Nova Scotia.135

Neither side has presented any published caseload and time-to-trial information of the

Nova Scotia courts.

Litigating the case in the Eastern District of Pennsylvania would expedite the

resolution of the case and would not burden the docket. The congestion factor favors this

forum.

130 U.S. District Courts, Combined Civil and Criminal Federal Court Management Statistics,

National Judicial Caseload Profile (June 30, 2024), https://www.uscourts.gov/sites/default/files/

data tables/fcms na distprofile0630.2024.pdf.

131 Id.

132 Judge Timothy J. Savage, Lexis Nexis Litigation Analytics, https://plus.lexis.com/

litigationanalytics/judge/68815 (last visited Sept. 27, 2024).

133 Sikorsky’s Br. (citing Aff. of Adam L. Harris ¶ 27 (attached as Ex. K to Sikorsky’s Br.), ECF No.

16-4.)

134 Mason Aff. ¶¶ 23-24, 128–29.

135 Id. ¶¶ 23–25, 128–30.

Regarding the local interest in the controversy factor, Sikorsky argues that Canada

has a greater interest in this litigation because its military solicited and exclusively owned

and operated the CH-148, it certified the CH-148 for military use, the accident killed

Canadian military members, and the Canadian authorities investigated the accident.136

The plaintiffs counter that the Eastern District of Pennsylvania and the United States have

an interest in promoting safe products and in deterring tortious conduct of its residents.137

Sikorsky contends that even if there is a legitimate local interest in deterring the

corporation’s conduct, its Coatesville facility “played no role in the design, manufacturing,

testing or selling” of the EFCS technology in the CH-148.138 Sikorsky ignores that it

heralded its Coatesville facility as “Home of the CH-148.”

The plaintiffs’ theory is that Sikorsky’s CH-148 helicopter fleet contained a design

defect. Because the CH-148 was manufactured in the United States and the Block 2

upgrades portion of the manufacturing process that made the fleet operational were

installed in the Coatesville facility, Sikorsky’s tortious conduct occurred in the United

States, including in the Eastern District of Pennsylvania.

Pennsylvania has an interest in regulating the behavior of corporations operating

in the Commonwealth. See Behrens v. Arconic, Inc., 487 F. Supp. 3d 283, 333 (E.D. Pa.

2020) (rev'd in part on other grounds) (“Many courts have recognized a state's legitimate

interest in policing the conduct of corporations that operate within its borders, especially

in the context of an international accident.”); Incubadora Mexicana, SA de CV v. Zoetis,

136 Sikorsky’s Br. 34–38.

137 Pls.’ Opp’n 57–59.

138 Sikorsky’s Reply 18, 21.

Inc., 116 F. Supp. 3d 519, 525 (E.D. Pa. 2015) (“Pennsylvania has an interest in ensuring

that its corporations do not engage in tortious conduct which causes injury to anyone,

regardless of where those individuals reside.”); Harrison v. Wyeth Lab'ys Div. of Am.

Home Prods. Corp., 510 F. Supp. 1, 4 (E.D. Pa. 1980) (recognizing “Pennsylvania's

interest in the regulation of the conduct of drug manufacturers and the safety of drugs

produced and distributed within its borders”). This interest is not limited to a single

helicopter and a single incident. Sikorsky markets, designs, and manufactures and sells

helicopters to users throughout the United States. Pennsylvania has an interest in the

safety of products introduced into the stream of commerce from here. The United States

has an interest in “redressing wrongful conduct” of U.S. corporations. See Windt, 529

F.3d at 193–94 (“[T]he United States has an interest in redressing wrongful conduct

engaged in by a U.S. corporation and American executives.”).

Pennsylvania also has a reputational interest. It benefits from a reputation for its

manufacturers producing safe and reliable products. That reputation is harmed when

someone is killed using the product. Conversely, it is enhanced when it is determined that

it designed a safe product. Thus, on one hand, Pennsylvania has an interest in ensuring

that corporations manufacture and sell safe products, and on the other, that they are not

unfairly treated when their product is safe.

Canada’s interest in this dispute is significant. The decedents were all Canadian

Air Force members who died while conducting a Canadian military training exercise. The

plaintiffs are all Canadian citizens—five of the plaintiffs reside in Nova Scotia, and one in

British Columbia.139 The helicopter was produced exclusively for the Canadian military.

Canada certainly has an interest in protecting its citizens, particularly members of its

military, from faulty and unsafe products.

Pennsylvania and Nova Scotia each have local interest in the controversy. Nova

Scotia has the greater interest even though its citizens involved stand to receive a greater

recovery in this forum. Canada has a greater interest in resolving claims arising out of a

fatal accident that occurred when its Air Force members were engaged in military

exercises. The local interest factor weighs in favor of litigating the case in Nova Scotia.

The next relevant factor is the public interest “in having the trial of a diversity case

in a forum that is at home with the state law that must govern the case, rather than having

a court in some other forum untangle problems in conflict of laws, and in law foreign to

itself.” Gilbert, 330 U.S. at 509. The need to apply foreign law generally favors dismissal.

Piper, 454 U.S. at 260. However, other factors may outweigh that factor.

The plaintiffs bring this action under the Death on the High Seas Act (DOHSA), 46

U.S.C. § 30301, et seq. DOHSA allows the personal representative of any person who

dies due to “a wrongful act, neglect, or default occurring on the high seas,” to “bring a civil

action in admiralty against the person or vessel responsible.” 46 U.S.C. § 30302. Although

it is the exclusive remedy for wrongful death on the high seas and supersedes any state

wrongful death statute, DOHSA does not preclude recovery under Pennsylvania’s

survival statute. Dugas v. Nat'l Aircraft Corp., 438 F.2d 1386, 1388–89, 1391 (3d Cir.

1971).

139 Compl. ¶¶ 33–38.

DOHSA actions give rise to maritime jurisdiction. See 46 U.S.C. § 30302 (providing

a claim to relief “in admiralty” under DOHSA); Offshore Logistics, Inc. v. Tallentire, 477

U.S. 207, 217 (1986). Because we exercise maritime jurisdiction over this case, we apply

federal maritime choice of law rules to determine whether the laws of the United States

or Canada apply. See Blue Whale Corp. v. Grand China Shipping Development Co., Ltd.,

722 F.3d 488, 495 (2d Cir. 2013). The conflict of laws analysis in maritime actions involves

a two-step test. See Neely v. Club Med Management Services, Inc., 63 F.3d 166, 182–

83 (3d Cir. 1995). First, do we have prescriptive jurisdiction? Id. Second, if so, is it

reasonable to apply American law? Id. If the answer to both questions is yes, American

law applies. Id. at 184.

To establish prescriptive jurisdiction, plaintiffs must demonstrate one of the

following: injury to an American seaman or a seaman with American dependents; injury

in American territory; American defendants; an American flagged ship; or a contractual

choice of law provision selecting American law. Id. at 182, 186. Sikorsky is an American

defendant. Therefore, we have prescriptive jurisdiction over this action.

We now assess the reasonableness of applying American law. In doing so, we

look to the factors enumerated in Lauritzen v. Larsen 345 U.S. 571, 590–92 (1953),

Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), and Hellenic Lines

v. Rhoditis, 398 U.S. 306 (1970).140 The factors are: (1) the place of the wrongful act; (2)

the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegiance or

domicile of the defendant; (5) the place where the contract was made; (6) the

140 Together these cases are known as the “Lauritzen triad.” Neely, 63 F.3d at 170.

inaccessibility of the foreign forum; (7) the law of the forum; and (8) the defendant’s base

of operations. We consider only those factors relevant to the case. See Neely, 63 F.3d

at 174.

The Lauritzen factors are a guide to determining whether applying the law of the

forum would be reasonable in light of the facts. They are not controlling or dispositive.

They are meant to inform the reasonableness determination. They are not mechanically

applied. The significance of a factor varies depending on the facts. Id. at 182.

The benchmark of the analysis is reasonableness. The Lauritzen analysis aims to

assure that American law is not applied to cases lacking a significant American

connection and to resolve conflicts with the maritime laws of other nations.

The first Lauritzen factor considers the place of the wrongful act. The alleged

defective design, manufacture, marketing and upgrades to the CH-148 occurred in the

United States in Sikorsky’s facilities in Connecticut, Florida, and Pennsylvania. The

helicopter was tested and certified in Canada. It was also tested in the United States. In

this case, the first factor is bolstered by the fourth (defendant’s allegiance and domicile)

and the eighth (defendant’s base of operations). Together they favor applying American

law.

Sikorsky is an American citizen. It is incorporated in Delaware and has its principal

place of business in Connecticut. It has a production facility located in Florida. It is an

American citizen.

The defendant’s base of operations is in the United States. Sikorsky operates in

the United States. Although it has since closed its Coatesville facility, it operated that

facility at the time of the wrongful conduct. Sikorsky still operates its headquarters in

Connecticut and a production facility in Florida.

The remaining factors are not as significant as the first, fourth, and eighth factors.

The helicopter flew under the Canadian flag and the plaintiffs are domiciled in Canada.

The place of contracting is “of little import” in the maritime tort setting, because the

location of the vessel at the time of injury is generally fortuitous. Neely, 63 F.3d at 192;

Lauritzen, 345 U.S. at 588–89. Moreover, there is no direct contractual relationship

between plaintiffs and Sikorsky. Melgares v. Sikorsky Aircraft Corp., 613 F. Supp. 2d 231,

251 (D. Conn. 2009). Therefore, the fifth factor is not relevant here.

The law of the forum is a “very weak consideration” in the conflict of laws analysis.

Neely, 63 F.3d at 190 (citing Lauritzen, 345 U.S. at 591 (“Jurisdiction of maritime cases

in all countries is so wide and the nature of its subject matter so far-flung that there would

be no justification for altering the law of a controversy just because local jurisdiction of the

parties is available.”)). Nonetheless, the forum is in the United States. The law of the

forum supports application of United Sates law.

Neither forum in the United States or Canada is inaccessible to the parties. The

law of either forum is adequate.

The place of the wrongful act, the allegiance and domicile of the defendant, the

law of the forum, and the defendant’s base of operations weigh in favor of applying United

States law. Because we have prescriptive jurisdiction and it is reasonable to apply

American law, there is no conflict of laws issue.

In analyzing the final public interest factor, we consider the unfairness of burdening

citizens with jury duty in a forum having no relationship to the litigation. See Gilbert, 330

U.S. at 508–09. This case involves complex technical and military issues. However, as

we have already concluded, Pennsylvania has a significant relationship to this litigation.

The alleged defective helicopter was upgraded and tested in Coatesville, Pennsylvania

for two years before being deemed operational by the Canadian military. Therefore, it

would not be unfair or a burden for the citizens of Pennsylvania to determine whether a

corporation that placed the helicopter into the stream of commerce from here is liable.

Conclusion

The difficulties Sikorsky raises do not override the plaintiffs’ choice of forum that is

based on access to evidence critical to the claims. The difficulties will not result in

oppression and vexation to Sikorsky out of all proportion to the plaintiffs’ convenience.

Therefore, we shall deny the motion to dismiss this action on forum non conveniens

grounds.