Petition — Kalinsky v. General Dynamics Corp.

} Supreme Court Ur

FILES

80 ~352 SEP 4 - 1989

MICHAEL RODA\, a Nap

vi

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1980

IN RE PARIS AIR CRASH

OF MARCH 3, 1974

PLAINTIFFS IN MDL 172

DORIS LEAH KALINSKY, et al.,

Petitioners,

vs.

GENERAL DYNAMICS CORPORATION;

McDONNELL DOUGLAS CORPORATION.

Respondents.

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID NOBLE and HERBERT HAFIF

304 South Broadway, Suite 506

Los Angeles, California 90013

Telephone: (213) 485-8379

Attorneys for Petitioners

DORIS LEAH KALINSKY & SOL KALINSKY

Of Counsel:

AI WOODWARD

No.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1980

IN RE PARIS AIR CRASH

OF MARCH 3, 1974

PLAINTIFFS IN MDL 172

DORIS LEAH KALINSKY, et al.,

Petitioners,

vs.

GENERAL DYNAMICS CORPORATION;

McDONNELL DOUGLAS CORPORATION.

Respondents.

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID NOBLE and HERBERT HAFIF

304 South Broadway, Suite 506

Los Angeles, California 90013

Telephone: (213) 485-8379

Attorneys for Petitioners

DORIS LEAH KALINSKY & SOL KALINSKY

Of Counsel:

AI WOODWARD

I

QUESTIONS PRESENTED

a Whether the Ninth Circuit

Panel correctly performed its task un-

der Erie v. Tompkins, 304 U.S. 64, in

deciding an issue of state law which

the District Court previously decided?

2 Whether a distinction against

punitive liability in death cases vio-

lates the equal protection standards of

the California Constitution?

He Whether a distinction against

punitive liability in death cases vio-

lates the equal protection standards of

the United States Constitution?

4. Whether a classification favor-

ing homicide deserves the stricter scru-

tiny of suspect classifications?

. Whether a court can interpret

a death distinction to absolve from real

liability a defendant who intentionally

killed for the sake of legal advantage?

6. Whether the law creates an

immunity from real liability for defen-

dants who would plan plane crashes for

profit?

>

_

Il

PARTIES

The parties to an appeal before

the Ninth Circuit Panel whose Opinion is

sought to be reviewed are as follows:

je General Dynamics Corporation;

McDonnell Douglas Corporation, Appellants.

ro Plaintiffs in MDL 172;

Doris Leah Kalinsky and Sol Kalinsky; and

Geraldine L. Flanagan, Appellees.

ii.

VIII

Eis

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......... i

I aes ecw iets oh as ii

TABLE OF CONTENTS ......... iii

TABLE OF AUTHORITIES ......... Vv

GRINIONS BELOW... 25). 0G 1

Fo ony (Sa re re ae 3

CONSTITUTIONAL PROVISIONS

STATUTES & REGULATIONS ...... 9

STATEMENT OF THE CASE ...... 17

The District Court found the

death distinction unconstitu-

tional in that it denies the

person injured by death equal

protection of the law to estab-

lish exemplary liability for

the purpose of deterence, and

it shields the death defendant

from that liability, for the

sole reason that the defendant

kills. All other injured per-

sons can assert exemplary lia-

bility to deter wrongful acts.

The Court of Appeals REVERSED.

iii.

IX

w

o

REASONS FOR ALLOWING THE WRIT:

1 "FAIR COMPENSATION" .... 28

2 SURVIVING VICTIMS ...... 29

3 THE COURT'S POWER ...... 30

4 REMEDIAL STRAIGHTJACKET 31

3. STRICT SCRUTINY ........ 32

6 STATE STANDARD ......... 33

7 FEDERAL STANDARD ....... 35

8 UNPREDICTABLE EFFECTS .. 36

9 EVIL CONSEQUENCES ...... 37

10. PUBLIC INTEREST ........ 43

COREE once sede een ens 50

APPENDIX

Opinion dated June 2, 1980

Denial of Petitions for Rehearing

and suggestion for rehearing en banc.

Order on Motion for Stay of Mandate

Order sealing Kalinsky brief;6/15/78

Order sealing Kalinsky brief;6/16/78

iv.

IV

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION

Fourteenth Amendment 1.3, 2

28 U.S.C. § 1254 4

28 U.S.C. § 1332 6

28 U.S.C. § 1346 6

28 U.S.C. § 2403(b) 7

Federal Rule of Evidence 403 30

Rules of the Supreme Court 28.4(c) 7

Erie v. Tompkins (1938) 304 U.S.64 i,5,41

IBEW v. Foust (1979) 442 U.S. 42 36

Scandinavian Airline System v.

United Aircraft Corporation

(U.S.C.A. 9th Cir.1979) 5

A THOROUGH CRITIQUE OF CERTIFICA-

TION OF TRANSPORT CATAGORY AIRCRAFT

BY THE FEDERAL AVIATION ADMINISTRA-

TION, May 7, 1980, SIXTEENTH REPORT

BY THE COMMITTEE ON GOVERNMENT

OPERATIONS r Bie

Caltfornta authorities

CONSTITUTION OF THE STATE OF

CALIFORNIA; Article l, § 7 1.9,064

Civil Code § 4 10,31

Civil Code § 3294 ree: Poy

Code of Civil Procedure § 4 sa

Code of Civil Procedure §§27-29 11,31

Code of Civil Procedure § 32 11,40

Code of Civil Procedure § 377 7,12,31,

Code of Civil Procedure § 1858 ar

Probate Code § 573 15,31

Justus v. Atchison (1977) 19Cal.3d

tr. 97, 565 P.2d 122 33-35

Lange v. Schottler(1896) 115 Cal.388 25,

45,46

Morgan v. Southern Pacific Co.

(LBS) 95 Cal. 510 46

Munro v. Pac.Coast Dredging

(1890) 84 Cal. 515 46

Tarasoff v. Regents (1976)17 Cal.

3d 425,131 Cal.Rptr.14, 551 P.2d 334 34

REPORT OF THE EXAMINERS OF THE CODES

Prepared for the California Legisla-

ture, 1874 44

Exodus 20:13 and Matthew 5:21-26 49-50

Va.

V

OPINIONS BELOW

(District Court Opinions)

Times Newspapers Limited (of Great

Britain) v. McDonnell Douglas Corpor-

ation, (1974) 387 F.Supp. 189:

Re sealing of depositions and docu-

ments and exclusion of the public.

In_re Paris Air Crash of March 3, 1974

MDL 172, (1975) 399 F.Supp. 732:

Re choice of California's law.

In re Paris Air Crash of March 3, 1974

MDL 172, (1975) 69 F.R.D. 310:

Re separate consolidated trials on lia-

bility and compensatory damages

In re Paris Air Crash of March 3, 1974

, Supp. :

Re punitive liability (first opinion).

In re Paris Air Crash of March 3, 1974

MDL 172, (1976) 423 F.Supp. 367:

Re compensatory damages instructions.

In re Paris Air Crash of March 3, 1974

MDL 172, (1977) 427 F.Supp. 701:

Re punitive liability (second opinion) ~

Geraldine L. Flanagan, et al v. McDon-

nel Douglas Corporation, et al, (1977)

428 F.Supp. 770: Re statute of Llimita-

tions and class action decertification.

In re Paris Air Crash of March 3, 1974

upp. 1074:

Re suicide from grief not recoverable

1.

(Court of Appeals Opinions)

McDonnell Douglas Corporation and

General Dynamics C Corporation v.

Geraldine L. Flanagan and all others

similarly situated, (U.S.C.A. 9th Cir.,

1976),

Petition for Certiorari denied April,

1976:

Re class action certification of plane

crash cases.

In re Paris Air Crash of March 3, 1974

MDL 1/2, Doris Leah Kaiinsky, et al v.

McDonnell Douglas, General Dynamics,

the United States and Turkish Airlines,

(U.S.C.A. 9th Circuit 1978)578 F.2d 264.

Re time for appeal where U.S. a party.

In_re Paris Air Crash of March 3, 1974

MDL 172, Kalinsky et al v. McDonnell

Douglas et al, (U.S.C.A. 9th Circuit 1979),

Re compensatory damages trial errors.

In re Paris Air Crash of March 3, 1974

McDonnell Douglas Corporation and

General Dynamics Corporation v. Plain-

tiffs in MDL 172, (U.S.C.A. 9th Cir. 1980),

Re constitutionality of disallowance of

punitive liability in death cases.

This is the opinion which is preventing

a liability trial and from which this

Petition is taken.

Final citations are not yet available.

VI

JURISDICTION

The date of the judgment

or decree (the Opinion) sought to be

reviewed is June 2, 1980. Its time of

entry has not been indicated. See

Appendix "A".

ss On July 29, 1980 the three-

judge panel of the Court of Appeals

voted to deny the petitions for rehear-

ing, and no judge of the court has re-

quested a vote on the suggestions for

rehearing en banc. See Appendix "B".

ae On August 11, 1980 Judge Ken-

nedy granted appellees‘ motion for stay

of mandate pending the filing, consider-

ation and disposition of the within Pe-

tition for Writ of Certiorari; such Pe-

3. | ;

tition to be filed by September 6, 1980.

See Appendix '"'C".

4. The statutory provision be-

lieved to confer on this Court juris-

diction to review the judgment or decree

(the Opinion) in question by writ of

certiorari is Title 28, section 1254, of

the United States Code:

"Cases in the courts of appeals

may be reviewed by the Supreme Court

by the following methods:

(1) By writ of certiorari granted

upon the petition of any party to any

civil or criminal case, before or af-

ter rendition of judgment or decree;"

ke Ox

. There are special and important

reasons for granting this petition in that

the Court of Appeals has so far departed

from the accepted and usual course of ju-

dicial proceedings as to call for an ex-

ercise of this Court's power of super-

vision:

a. The Court of Appeals’ point-

edly refused to follow the Erie man-

date and reach the same result as

would a California court. See fn. 2

of the Opinion, Appendix "A". Erie v.

Tompkins, 1938) 304 U.S. 64.

b. The Court of Appeals refused

to give proper deference to the deter-

mination of California law by the two

District Court judges from California.

The Ninth Circuit panel was composed

of two judges from Oregon and one

from California. Scandinavian Airline

System v. United Aircraft Corporation,

(U.S.C.A. 9th Cir., 1979)

repeated the Ninth Circuit's standard:

"* * * The analysis by the district

judge of the law of the state in which

he sits is entitled to great weight

and his determination will be accepted

on review, unless shown to be clearly wrong''

(Italtes added)

Counsel has found no cases otherwise.

5.

6. The Court of Appeals has

decided an important issue of federal

law which has not been, but should be,

settled by this Court. The degree of

scrutiny to which a distinction favoring

homicide should be subjected has not

been decided by this Court. It should

be decided in that this distinction

against liability in death cases may

actually be producing death from be-

neath the wing of this Court.

eB The basis for federal juris-

diction is diversity and amount in con-

troversy. 28 U.S.C. § 1332.

Additionally, the United States

is a party, 28 U.S.C. § 1346(b), and an

alien is a party, Turkish Airlines, see

28 U.S.C. § 1332(a)(2); and potentially

the Warsaw Convention, a treaty, was

involved. |

8. Pursuant to Rule 28.4(c) of

the Rules of this Court, and this being

the initial paper filed in this Court:

28 U.S.C. §2403(b) may be applicable in

that the Opinion in question treats the

distinction against punitive liability

in death cases as having been created

by statute. Opinion at page 3, line 16,

through page 6, line 26.

The Opinion, however, also

recognizes that this death distinction

is based upon purely judicial interpre-

tation. Opinion, fn. 2. Therefore,

the constitutionality of neither the

wrongful death statute, California Code

of Civil Procedure § 377, nor the puni-

tive damages statute, California Civil

Code § 3294, has been drawn into ques-

tion, although the judicial interpre-

tation of the two has been questioned.

Pursuant to 28 U.S.C. 2403(b):

counsel is not aware of any procedure by

which this possible fact that the consti-

‘tutionality of such statutes of the State

has been drawn into question; and counsel

is not aware that such has been attempted

in this case.

Nevertheless, because the Ninth

Circuit Panel has treated the distinction

as having been created by statute, counsel

has served a copy of this Petition upon

the Attorney General of the State of Cali-

fornia. See Certificate of Service.

VI

CONSTITUTIONAL PROVISIONS,

STATUTES & REGULATIONS INVOLVED

Page

UNITED STATES CONSTITUTION ae

Fourteenth Amendment,

Section lL

"All persons born or naturalized

in the United States, and subject

to the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No State shall make or enforce

any law which shall abridge the

privileges or immunities of citi-

zens of the United States; nor

shall any State deprive any per-

son of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws."

CONSTITUTION OF THE STATE OF CALIFORNIA

Article 1, § 7 . ‘.

"(a) A pe neon may not be deprived

ot life, Mberty* or property with-

out due process of law or denied

equal protection of the laws; pro-

vided, [specific provisions rela-

tive only to pupil school assign~

ment or pupil transportation].

CALIFORINA CIVIL CODE, Sections:

Page

§3294 31,32

"In an action for the breach of an

obligation not arising from contract,

where the defendant has been guilty

of oppression, fraud, or malice, ex-

press or implied, the plaintiff, in

addition to the actual damages, may

recover damages for the sake of ex-

ample and by way of punishing the

defendant."

§ 4 32

"Rules of construction. The rule of the

common law, that statutes in derro-

gation thereof are to be strictly

construed, has no application to this

Code. The Code establishes the law

of this State respecting the subjects

to which it relates, and its provi-

sions are to be liberally construed

with a view to effect its objects

and to promote justice."

10.

CALIFORNIA CODE OF CIVIL PROCEDURE,

Sections:

Page

§ 4 [Identical to Civil Code § 4] 32

§ 27 31

"Division of injuries. An injury is

of two kinds:

1. To the person; and,

2. To property."

§ 28 31

"Injuries to property. An injury to

property consists in depriving

its owner of the benefit of it,

which is done by taking, with-

holding, deteriorating, or de-

stroying it."

§ 29 31

"Injurtes to the person. Every

other injury is an injury to

the person."

§ 32 23

"Ctvtl and criminal remedies not merged.

When the violation of a right ad-

mits of both civil and criminal

remedy, the right to prosecute the

one is not mergec. in the other."

ll.

CALIFORNIA CODE OF CIVIL PROCEDURE,

Sections: Page

§ 377 31,32,

33,43

(a) When the death of a person

is caused by the wrongful act or

neglect of another, his or her

heirs or personal representatives

on their behalf may maintain an

action for damages against the

person causing the death, or in

case of the death of such wrong-

doer, against the personal repre-

sentative of such wrongdoer, whe-

ther the wrongdoer dies before or

after the death of the person in-

jured. If any other person is re-

sponsible for any such wrongful

act or neglect, the action may also

be maintained against such other

person, or in the case of his or

her death, his or her personal re-

presentatives. In every action

under this section, such damages

may be given as under all the cir-

cumstances of the case, may be just,

but shall not include damages re-

coverable under Section 573 of the

Probate Code. The respective rights

of the heirs in any award shall be

determined by the court. Any action

brought by the personal representa-

tives of the decedent pursuant to

the provisions of Section 573 of the

Probate Code may be joined with an

action arising out of the same wrong-

ful act or neglect brought pursuant

to the provisions of this section.

12.

CALIFORNIA CODE OF CIVIL PROCEDURE,

Sections:

§ 377 (continued)

If an action be brought pursuant

to the provisions of this section

and a separate action arising out

of the same wrongful act or neg-

lect be brought pursuant to the

provisions of Section 573 of the

Probate Code, such actions shall

be consolidated for trial on the

motion of any interested party.

(b) For the purposes of subdivi-

sion (a), 'heirs' mean only the

following:

(1) Those persons who would be

entitled to succeed to the pro-

perty of the decedent according

to the provisions of Division 2

(commencing with Section 200) of

the Probate Code,

(2) Whether or not qualified

under paragraph (1), if they were

dependent on the decedent, the pu-

tative spouse, children of the pu-

tative spouse, stepchildren, and

parents. As used in this para-

graph, ‘putative spouse’ means the

surviving spouse of a void or void-

able marriage who is found by the

court to have believed in good faith

that the marriage to the decedent

was valid.

(3) Minors, whether or not qualified

under paragraphs (1) or (2), if, at

the time of the decedent's death,

13.

CALIFORNIA CODE OF CIVIL PROCEDURE,

Sections:

Page

§ 377 (continued)

they resided for the previous 180

days in the decedent's household

and were dependent upon the dece-

dent for one-half or more of their

support.

Nothing in this subdivision shall

be construed to change or modify

the definition of 'heirs' under

any other provision of law."

§ 1858 43

"Construction of statutes and tnstru-

ments, genera: rule. In the construc-

tion of a statute or instrument,

the office of the Judge is simply

to ascertain and declare what is

in terms or in substance contained

therein, not to insert what has

been omitted, or to omit what has

been inserted; and where there are

several provsions or particulars,

such a construction is, if possible,

to be adopted as will give effect

eo aii.”

14.

CALIFORNIA PROBATE CODE, Sections:

Page

§ 573 31

"Exept as provided in this section

no cause of action shall be lost by

reason of the death of any person

but may be maintained by or against

his executor or administrator.

In an action brought under this

section against an executor or ad-

ministrator all damages may be a-

warded which might have been recov-

ered against the decedent had he

lived except damages awardable un-

der section 3294 of the Civil Code

or other damages imposed primarily

for the sake of example and by way

of punishing the defendant.

When a person having a cause of

action dies before judgment, the

damages recoverable by his executor

or administrator are limited to such

loss or damage as the decedent sus-

tained or incurred prior to his death,

including any penalties or punitive,

or exemplary damages that the dece-

dent would have been entitled to re-

cover if he lived, and shall not in-

clude damages for pain, suffering

or disfigurement.

This section is applicable where a

loss or damage occurs simultaneously

with or after the death of a person

who would have been liable therefor

if his death had not preceded or oc-

curred simultaneously with the loss

or damage.

15.

CALIFORNIA PROBATE CODE, Sections:

§ 573 (continued)

Nothing in this section shall be

construed as making assignable things

in action which are of such a nature

as not to have been assignable prior

to the enactment of the 1961 amend-

ment to this section."

16.

VIII

STATEMENT OF THE CASE

The Statement of Facts set

forth in the Kalinsky appellees' brief,

and Addenda "A" and "B", have not been

seriously disputed in this case. They

are under seal before the Court and the

record on appeal has been specifically

augmented to include those two addenda.

Addendum "A", General Dynamics’

Applegate Memorandum, 'DC-10 Future Acci-

dent Liability," described the serious-

ness of its co-defendant's “band-aid fixes"

which "not only failed to correct the in-

herent DC-10 catastrophic failure mode of

cabin floor collapse but ... further de-

graded the safety of the original door

latch system."

17.

The problems were predicted

to "usually result in the loss of the

airplane." The loss of a DC-10 in

this particular catastrophic failure

mode means that every person on board

would perish.

The writer assumed that cor-

rection would be made and concluded:

"This corrective action becomes more

expensive every day as production con-

tinues. However, it may well be less

expensive than the cost of damages re-

sulting from the loss of one plane load

of people.'' He circulated his memo for

the highest levels of management to take

corporate action thereon.

They met and did nothing more

than ask that the copies be returned to

the writer who then destroyed all but

one for his personal file. That copy

has survived as Addendum "A".

18.

On July 3, 1972, J.B. Hurt,

General Dynamics' Program Manager for

the DC-10 Support Program, wrote with

further concern what has survived as

Addendum "B'"'. This memo began, "I do

not take issue with the facts or con-

cern expressed in the referenced memo;'

and concluded, ‘We have an interesting

legal and moral problem ...."

Defense counsel have taken

the position that meetings to discuss

these memos are privileged in that at

least one attorney was present.

There were two dress rehear-

sals, predictions of top level design

engineers, and warnings from outside

experts such as the Dutch equivalent of

our FAA. But the defendants continued

to manufacture, sell and represent the

DC-10 as safe and airworthy.

19.

On February 25, 1974, William

C. Starloff, Douglas' FAA liason, made

the final refusal to FAA requests of

more than a year for relevant informa-

tion about the problem. After stating

that the FAA request should be clari-

fied, that Douglas did not have the

Manpower available to undertake a study,

and suggesting that the FAA consider

funding a study, the letter concluded

that Douglas would take no further

action until it heard further from the

FAA.

Which it soon did.

On March 3, 1974, six days after the

refusal letter was sent to the FAA, a

fully-loaded DC-10, en route from Paris

to London, lost a cargo door. The re-

sulting decompression of the cargo com-

partment failed the passenger floor

downward, severing the control cables,

20.

and causing the plane to crash,

killing all three hundred and forty-

six persons on board, an entire

"plane load of people" exactly as

predicted in the referenced memos.

On March 6, 1974, the FAA

issued an Airwothiness Directive.

Investigation into the crash led the

FAA to conclude that federal law had

been violated in the manufacture of

the plane. The Federal Aviation Act

of 1958 provided in section 901(a)

that civil penalties of up to $1000

per violation may be assessed and en-

forced via suit in the federal dis-

trict court. The Act also allows the

Administrator to compromise such pen-

alties, without the necessity of an

admission of guilt. Douglas’ check

for $2000 was accepted in full compro-

el.

mise and settlement, without an admis-

sion of guilt.

Since then, the FAA has been

authorized to collect larger fines, but:

"Increasing fines is not enough.

Structural reform of this often

neglected area of aircraft certi-

fication must be implemented, and

sanctions must be used which can

not be turned into ‘license fees'

by manufacturers as can even large

fines.'' A THOROUGH CRITIQUE OF CER-

TIFICATION OF TRANSPORT CATEGORY

AIRCRAFT BY THE FEDERAL AVIATION

ADMINISTRATION, May 7, 1980, SIX-

TEENTH REPORT BY THE COMMITTEE ON

GOVERNMENT OPERATIONS, Page 39.

(emphasts added)

The Legislature, by special committees,

conducted investigations and held hearings

in both the Senate and House of Represent-

atives. They produced two extensive tran-

scripts of prepared statements and ques-

tioning on the preventability of this dis-

aster. The Committee on Government Oper-

ations, whose members would not be neces-

sarily privy to Addenda "A" and "B", took

the above position based upon the apparent

22.

frustrations of the FAA. See Report, id.

Neither the FAA, nor any of

the investigative committees, uncovered

anything which predicted the crash with

the written precision of Addenda "A" and

"B". Those documents were not produced

until late in the discovery process un-

der the supervision of the late Peirson,

M. Hall, Senior District Judge.

Executive action, by govern-

mental authority, has apparently been

completed with the $2000 fine. It is-

unlikely that action would be initiated

more than seven years after the crash.

The FAA did collect a $300,000

fine ( "q tenth of one percent of the value of

the affected aireraft"/from one of these man-

ufacturers in connection with a subse-

quent crash in Chicago, some facts of

which may be relevant for impeachment if

there were ever a trial in this case.

23.

The Judicial branch of the

United States, with diversity jurisdic-

tion, has consolidated all of the 346

death cases into one Multidistrict Liti-

gation proceedings in the Central Dis-

trict of California. Under that court's

supervision, nearly all of the insurance

proceeds, $62,286,780+ plus hull payment,

have been distributed to the more than

1100 claimants and their attorneys by

settlement. There were only three jury

1/

verdicts for compensatory damages,— and

no one has been permitted to introduce

any evidence of liability, either for

compensatory damages or for the exemplary

purpose of stopping planned plane crashes.

1 Sury verdicts:

The Kween case: $1,500,000;

appealed and settled for $ (unknown).

The Kalinsky case: $25,000;

appealed and settled for $75,000.

The Nagao case: $287,000.

24,

The defendants in this case

moved to strike claims of punitive lia-

bility based upon the rule first announ-

ced in Lange v. Schottler, 115 Cal. 388

(1896), that exemplary damages could no

longer be recovered in wrongful death

actions. The plaintiffs were shocked

to learn that the wrongful death act

contained a hidden limitation, and the

punitive liability statutes contained

special exemptions, not on the face of

the statutes, which favor only such

defendants who engage in prohibited

conduct and thereby take life: to kill.

The two District Court Judges

appointed to the case, on February 10,

1977, signed an opinion to the effect

that the distinction against punitive

liability in death cases, if such may

be established in non-death cases, is

25.

unconstitutional, as a violation of

the equal protection of the law. The

District Court's opinion came after

nearly three years of pretrial hearings

during which it supervised this case.

It certified its opinion for interlo-

cutory appeal which the two manufactur-

ing defendants brought before the Court

of Appeals for the Ninth Circuit - before

trial and before the introduction of any

evidence on the issue of liability.

Counsel for those two defen-

dants brought emergency motions before

the Court of Appeals to have the brief

of the Kalinsky appellees stricken and

sealed. They finally stipulated to having

it sealed before the court as part of an

augmented record. See Appendix "D", "E"

and "F",

26.

The Court of Appeals panel,

explicitly refusing to weigh the his-

torical and policy arguments (fn.2 of

the Opinion), advanced in appellees'

sealed brief, reversed the District

Court's opinion and remanded the case

for further proceedings without a

trial on liability.

The within Petition for Writ

of Certiorari seeks this Court's review

of an important question: Can the law

constitutionally shield wrongful death

defendants from liability beyond the in-

surance they purchase for their victims’

lives? Conversely, can the law consti-

tutionally deprive wrongful death plain-

tiffs of standing to establish the cause

of their damages and seek, by example,

to prevent the recurrence of such damages

to themselves and to others?

27.

IX

REASONS FOR ALLOWING THE WRIT

‘ "FAIR COMPENSATION"

The Opinion confused the issues of

compensatory liability and punitive lia-

bility. The corporate defendants were

well insured and relatively immune from

compensatory liability beyond the insur-

ance premiums they purchase. The only

real liability for them is punitive.

Can a defendant who kills, intending

the insurance proceeds to pay "fair com-

pensation"=/ escape personal liability

solely because his intended victim died?

If "fair compensation" is less than

the cost of "corrective action", and the

death distinction provides a sealed re-

cord and no liability trial, then how

many planned plan crashes can we expect?

2/ opinion at pages 5 and 6.

28.

Zz SURVIVING VICTIMS

The Opinion did not recognize that

the surviving victims, the claimants

who have been bereaved of their loved

ones, are victims of the plane crash

in which they lose a family member. .

The surviving victims of this plane

crash had no say in whether their family

members' lives would be liquidated with

payment of "full compensation for loss2/

of companionship and financial support."

If there is any innocence beyond that of

one boarding a plane, it is that of the

relative left behind only to learn what

it means to be a surviving victim.

To deprive surviving victims of the

right to a trial on liability is to create

an open season on the lives of plane pas-

sengers and the surviving victims.

3/ opinion at page 5, line 17.

29.

The fact of insurance is a cold

blanket for the loss of a loved one;

ali the more chilling to know that

the plane crash was apparently preven-

table and there will be no liability

trial - for the sole reason of death.

a THE COURT'S POWER

The Court of Appeals did not recog-

nize its own power to control any jury

awards of punitive damages. The danger

of extreme awards, and awards not based

upon the evidence and the requisite ele-

ments of punitive liability, are subject

to judgment NOV, remittitur and other

judicial discretions such as admissibil-

ity of evidence under Rule 403 of the

Federal Rules of Evidence. Such control

exists at the trial court, and on appeal,

as far as any party wishes to proceed.

30.

4, REMEDIAL STRAIGHTJACKET

The panel straightjacketed itself

into ignoring the difference between

decedents and surviving victims. 4/

Each are victims in their own right.

The decedents' rights are adminis-

tered through the decedents' estates,

under California Probate Code § 573,

and that is the end of the decedents.

The rights of the surviving victims

are recognized through California Code

of Civil Procedure § 377. They are re-

cognized as a kind of injury to the per-

son under Code of Civil Procedure § 29.

In that they do not arise from breach

of contract, Civil Code § 3294 does not,

on its face, prohibit punitive liability.

The death distinction arises from

judicial interpretation, and misinter-

pretation, of the statutory scheme.

4/ Opinion at page 12, lines 3 - 8.

31.

2 STRICT SCRUTINY

The panel refused to apply the

principles of strict scrutiny to this

judicially created distinction, under

either the California or the United

States Constitutions. After discussing

what might happen if a plaintiff were

allowed to sue for punitive damages with

no requirement of causation or injury,

the panel refused to recognize the his-

tory and policy of the statutory scheme’

If it had, it would have seen that the

statutory scheme exists not just for "fair

compensation" but for deterence beyond com-

pensatory liability. Sealed brief,pp. 45,66.

The deterent aspect of Civil Code § 3294,

when coupled with Code of Civil Procedure

§ 377, is an apparent civil mandate for the

respect of life. See Civil Code § 4.

3/ opinion at page 9 and fn. 2.

32.

6. STATE STANDARD

The panel misplaced its reliance

upon Justus v. Atchison, 19 Cal.3d 564,

582, 139 Cal.Rptr. 97,109, 565 P.2d 122,

134 (1977). That case determined whether

an unborn fetus is a decedent within the

meaning of Code of Civil Procedure § 377

for the purpose of recovery of damages

thereunder. The California equal protec-

tion standards were applied only in terms

of the identity of the decedent and not

in terms of punitive liability for the

killing itself.

Nothing in Justus shows the conclusion

of the district court judges to have been

clearly erroneous, as implied in the Opin-

ion at page 3, lines 8 - 14.

The Opinion at page 10 cites Justus

for the proposition that the legislature

had a goal of "placing reasonable limits

on wrongful death actions in this state."

33.

Justus may stand for the proposition

that it was reasonable for the legis-

lature to require a live birth preced-

ent to wrongful death. Justus does not

stand for the proposition that all lim-

itations on wrongful death actions are

per se reasonable. Nor does it stand

for the proposition that the goal of

the legislature in enacting the wrong-

ful death statute was generally to limit

recovery to compensation for what was

defined to be wrongful death.

Justus involved no punitive liability.

The panel's unprecedented reversal of

District Judges Hall and Real, together

who represent a magnitude of experience

in California law, demands review.

See fn. 2 of the Opinion, pp. 14&15.

Tarasoff, therein cited, involved no con-

stitutional attack on the distinction.

34.

fs FEDERAL STANDARD

The panel bootstrapped itself out

of any form of rational basis test under

the federal standard with its misappli-

6/

cation of Justus v. Atchison, supra. —

With its concern over "excessive lia-

bility", the Court of Appeals has upheld

a death distinction which allows the de-

fendants to escape with no real liability

other than insurance premiums.

The federal government, after receipt

of the maximum fine allowable for viola-

tions of Federal Aviation Regulations in

connection with this plane crash, and af-

ter asserting its own immunity from puni-

tive liability, now upholds the death

distinction with a blind eye to any ration-

al basis for its existence. It blatantly

refused to apply the State standard to con-

stitutional review of the distinction.

6/opinion, page 3,line l€, to page 4, line 22.

35.

8. UNPREDICTABLE EFFECTS

The panel misplaced its reliance upon

IBEW v. Foust, 442, U.S. 42,48-52 (1979), 2/

If a defendant can plan plane crashes,

meet its financial responsibility for

compensatory damages with insurance, and

escape any further civil liability for

the sole reason that all on board die,

"the serious and often unpredictable ef-

fects of allowing actions for punitive

damages'' would serve as no deterent at

all to such a diabolic scheme.

Instead, based upon + teak of what

might unfold at a trial on liability,

the Court of Appeals has determined all

wrongful death defendants in California

to have no more civil responsibility

than the payment of "fair compensation"

to the surviving victims; even for murder.

We have nothing to fear, but the truth.

1/ Opinion at page 5, lines 27-32.

36.

9. EVIL CONSEQUENCES

The effect of the Court of Appeals

Opinion and mandate that wrongful death

defendants need not be subjected to a

liability trial is to legally protect

the insured killing of citizens of Cali-

fornia, the United States and elsewhere.

It was ordered, and is settled, &/

that the parties, and their attorneys and

attorneys for amicus curiae, to the en-

suing death cases will be the only per-

sons legally privy to the documents and

deposition testimony; that each of them

will receive some money as "full compen-

sation" or an attorney's fee; that any

party or attorney who reveals testimony,

documents or briefs sealed before the

courts will be subject to contempt pro-

ceedings and "significant liability in

contempt if indeed so. "2!

37.

Based upon the Opinion in question,

potential defendants can consciously plan

plane crashes for profit, and remain im-

mune to civil liability beyond the insur-

ance for compensatory damages -- but only

if they successfully kill all who board

the plane. The lesson? mass annthilation!

Defendants who would participate in a

demonic scheme of this nature are now as-

sured that they can consciously create

disaster with immunity to civil liability;

and that the courts will help them conceal

their murderous acts.

They can nurture specific "catastrophic

failure" modes, take out insurance, and go

on with business, concealing the danger.

When disaster strikes, exactly as they

knew it would, the defendants offer the in-

surance proceeds and offer not to contest

liability so that fault issues will be

legally irrelevant to "fair compensation."

38.

And business goes on as usual with

the now greatly escalated time costs of

the risk spread among the defendants,

(via insurance premiums), the defendants'

competitors, the surviving victims, and

the general public.

They can keep track of premeditated

disaster with written precision, knowing

that the courts will respect their con-

fidences with a sealed record.

To further secure the sanctity of such

an unholy record, the courts will disallow

a trial on liability where any evidence

might be introduced to break the seal.

Under the Opinion in question, planned

plane crashes can be profitable. The cost

of repair is delayed and sometimes avoided.

Each crash supports lucrative business for

a small army of defense and plaintiff coun-

sel. Each party and their counsel expect

to be paid money for a release.

39.

A sanction may be appied through

the Federal Aviation Administration as

the sole arm of the federal executive

branch with jurisdiction over certifi-

cation for airworthiness. The Congress

has provided for the appointment of the

Head of the FAA to guard the ramparts

for citizen X. No one else has a right

to know what is going on before the

plane crash.

Thereafter, only the wrongful death

claimants, through the discovery process

of the judicial branch, begin to uncover

the awful truth. The judicial branch

blindly interprets the law to disallow

punitive liability where the defendant

has killed the claimant's decedent.

The court has no choice but to play

an active role. The court has control

of the discovery process and often can

not close its eyes to the awful spector

40.

of mass air disaster. It plays an

active role in the distribution of the

insurance proceeds which are paid through

its trust accounts. It renders numerous

opinions on technical issues and eventu-

ally closes the cases to make way for the

neverending flow of plane crash business,

never to look at the cause.

If it blindly interprets the law to

disallow punitive liability where the de-

fendant has killed the claimant's decedent,

the court declines to play the role clearly

demanded by California of its courts, and

by Erie of a federal court.

If it looks the other way, its judges

should be reminded that, while no corpor-

ation and no court ever died in a plane

crash, the crash makes no distinction be-

tween the subtle variances of natural per-

sons which the courts find more demanding

of strict scrutiny.

41.

footnotes

8/ See Appendix items "D" and "E":

orders of the Ninth Circuit Court of

Appeals based upon proceedings initia-

ted by defense counsel wherein counsel

for each of the two defendants accused

counsel for Kalinsky of being in con-

tempt of court in connection with their

brief in the appeal before that Court.

9/

~ Court of Appeals Judge Shirley Huf-

stedler noted an obvious First Amend-

ment problem with the Emergency Motions

brought before her. In an untranscribed

chambers meeting, she did not reach the

merits on the issue of contempt, "a po-

tentially damaging position" after she

had noted the possibility of "signifi-

cant liability in contempt if indeed so."

Counsel for Kalinsky, appearing alone,

for any for the appellees’ side, request-

the nee See a stipulation.

ms

10. PUBLIC INTEREST

The Court of Appeals frustrated the

legislative intent apparent on the face

of California's exemplary damages statute.

Caifornia Code of Civil Procedure § 377,

the wrongful death statute, makes no men-

tion of any punitive liability limitation

in death cases.

California's judicial pronouncements

of the death distinction do not amount to

an act of the Legislature. See Code of

Civil Procedure § 1858.

The history of this judicially

created distinction is shrouded in ob-

scurity. First the California Supreme

Court said that punitive damages were

allowable in in all death actions, re-

gardless of any real wrongdoing. Myers

v. San Francisco (1871) 42 Cal. 215.

Then the Code Commissioners recommend-

ed the deletion of the words "pecuniary

43.

and exemplary" from the wrongful death

statute in an 1874 amendment intended

more for the purpose of harmonizing the

respective porvisions of the codes than

for any other. The Report noted:

"We have proposed to change many

of these provisions so as to bring

them into harmony with the law as

heretofore existing and construed

by our courts for nearly a quarter

of a century. At the same time our

attention has been called to defects

which the last one or two years have

for the first time made themselves

apparent in laws which have stood

on our statute books for many years;

and whitch we have endeavored to correct,

making as little change as posstble in

the general frame of the statute.* * *"'

(italtes added)

The Report specifically noted:

"Note - The object of the amendments

in these two sections [the then exist-

ing wrongful death statute] is to make

the sections correspond with each other

and to designate with more precision

the parties liable, and they cover all

the cases mentioned in the original

sections." Report of the Examiners of

the Codes ( . See the sealed brief

of the Kalinsky appellees, pp. 34-36.

44,

Twenty years after the amendment which

deleted the words "pecuniary or exemplary",

neither the defense attorney for a major

corporation, nor a justice of the Californ-

ia Supreme Court, was aware of any intend-

ed change in the rule existing prior to

the amendment :

In 1896, in Lange v. Schottler, 115

Cal. 388, a wrongful death case, the at-

torney for the defendant-appellant began

his argument with the statement:

"It was error for the court to

instruct the jury that they could

find exemplary damages, as there was

not evtdence of malice suffitctent to war-

rant any tnstructton as to exemplary dam-

ages. "

The court then said in its opinion:

"The statute of 1862 (Stats. 1862,

p. 447) expressly allowed the jury

to give exemplary damages, and this

provision was carried into the first

edition of the codes. It authorized

such damages, pecuniary and exemplary,

as the jury should deem just.In 1874

section 377 was amended by striking

out the words ‘pecuniary and exem-

plary.' The purpose of this amendment must

45.

have been to take away the right to

exemplary damages and to make the

rule accord with che general rule

elsewhere."'[it didn't say where].

Lange, supra, at 391-2. (emphasis added)

This questionable assertion of the

legislative purpose became the founda-

tion for a line of cases, upon which

the respondents in this action rely.

No cases in this line ever gave any

rationale for the rule other than the

blind citation of the previous cases

back to Lange.

The court in Lange rewrote the stat-

ute to create a rule which was unknown

to the Supreme Court justices in the

previous cases of Munro v. Pac. Coast

Dredging, 84 Cal. 515 (1890) and Morgan

v. So. Pac. Co., 95 Cal. 510 (1892) and

even to the defense counsel in Morgan

and Lange, supra.

This is the first constitutional test

of the distinction.

46.

This barbaric distinction favoring

death has appeared through history like

a demon thriving upon disaster.

It quietly slides through the con-

scious recesses of the minds of those

who wreak its deadly havoc. It makes

killing profitable to the pervetrators,

the survivors, and their attorneys. It

lives under distinctions favoring death.

It is a misfortune that the courts

play so active a role in these cases:

and a double misfortune when they in-

terpret the law to immunize death de-

fendants from liability for the sole

reason of mass annihilation.

Under the Court of Appeals Opinion

in question, corporate defendants can

premeditate plane crashes, and then

step aside while their lawyers are paid

handsomely to dicker with the surviving

victims and their attorneys over the

47.

economic remains of plane loads of

people. The Opinion in question says

they never have to face or reveal the

evidence of their deadly acts.

These corporate defendants, creatures

of the law, are physically immune from

plane crashes, and the Opinion now says

they are legally immune. In effect,

they are free to reign beyond the last

clutches of civilized society.

Everything has gone according to the

plans secreted in the memos and the

Failure Mode Effect Analyses. There was

the loss of the plane, exactly as pre-

dicted, and all on board died because of

the “catastrophic failure mode."

The defense attorneys routinely offer-

ed not to contest liability so that no is-

sue of liability would be relevant to the

determination of how much "fair compen-

sation" should be paid.

48,

Under the Opinion in question, the

death defendant fairs well with a death

distinction which says thou shalt kill

to avoid liability and maintain secrecy.

Now, without a trial, we will not

know whether the court-interpreted dis-

tinction is actually producing plane

crashes, leaving the plans to be exe-

cuted in corporate headquarters.

"Thou shalt not kill." has been given

as the sixth commandment in Exodus 20:13.

The verb originally used can only mean

murder and always indicates intentional

slaying.

Later, in a Sermon on the Mount:

"Ye have heard that it was said by

them of old, Thou shalt not kill and

whosoever shall kill shall be in dan-

ger of judgment;

But I say unto you that whosoever

is angry with his brother without

cause shall be in danger of judgment;

and whosoever shall say to his broth-

er [an abusive epithet] shall be in

danger of the council; but whosoever

49.

shall say, Thou fool, shall be in

danger of hell fire.

Therefore, if thou bring thy gift to

the altar, and there rememberest that

thy brother hath anything against thee,

Leave there thy gift before the altar,

and go thy way; first be reconciled

with thy brother, and then come and

offer thy gift.

Agree with thine adversary quickly

while thou art in the way with hin,

lest at any time the adversary deliver

thee to the judge, and the judge deli-

ver thee to the officer, and thou be

cast into prison.

Verily I say unto thee, Thou shalt by

no means come out from there till thou

hast paid the uttermost farthing."

Matthew 5:21-26.

a

CONCLUSION

For these reasons, it is respectfully

submitted that this petition should be

allowed, and, in the Court's discretion,

the case should be summarily remanded

for trial on liability.

DAVID NOBLE and HERBERT HAFIF

Attorneys for Petitioners

AI WOODWARD

Of Counsel

50.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT FILED

JUN 2 1980

RICHARD H, DEANE

Clerk U.S. Court

of Appeals

In Re PARIS AIR CRASH of March 3, 1974

McDONNELL DOUGLAS CORPORATION,

Defendant-A ppellant,

In Re PARIS AIR CRASH of March 3, 1974

GENERAL DYNAMICS CORPORATION,

Nos,

77-2099

77-2266

Defendant-A ppellant,

Vv.

OPINION

PLAINTIFFS IN MDL 172,

Plaintiffs -A ppellees.

ee ee ee i ee ee

Appeal from the United States District Court

for the Central District of California

Before: GOODWIN and KENNEDY, Circuit Judges,

and EAST, * District Judge.

*Honorable William G. East, Senior United States

District Judge for the District of Oregon, sitting by

designation,

A-1

KENNEDY, Circuit Judge:

The single question in this interlocutory

appeal is whether the California rule that puni-

tive damages are not permitted in wrongful death

actions is consistent with the equal protection

clause of the fourteenth amendment and its

counterpart in the state constitution. The ques-

tion arises in the wrongful death actions that re-

sulted from the Paris air crash of March 3, 1974,

A DC-10 passenger plane operated by Turkish

Airlines, Inc., was en route from Paris to London

when it crashed, and all 346 people aboard were

killed.

Wrongful death actions commenced in various

districts across the country were consolidated by

the Judicial Panel on Multidistrict Litigation and

transferred to the Central District of California.

The trial court held that California law would

apply in determination of the suits and no objec-

tion to that ruling is made on this appeal.

Many of the individual suits included claims

for punitive damages based on allegations of in-

tentional, fraudulent, or malicious conduct in the

design, production, and certification of the plane.

The defendants made, and renewed, motions to

dismiss these claims and for summary judgment

on them, arguing that California law did not pro-

vide for punitive damages in wrongful death actions.

The district court denied the motions. In re Paris

Air Crash of March 3, 1974, 427 F.Supp. 701 (C.D.

Cal. 1977). The trial court acknowledged that

California appellate courts have held punitive dam-

ages are not recoverable in wrongful death actions,

A-2

but held that this restriction denied wrongful death

plaintiffs, as compared to other tort plaintiffs,

equal protection of the laws under the Federal and

California Constitutions, U.S, Const. amend, XIV,

§ 1; Cal. Const. art. I, 27; id. art. IV, § 16(a).3

The trial court's decision was certified for immedi-

ate appeal pursuant to 28 U.S.C, 2 1292(b) (1976).

See 427 F.Supp. at 702 n,1, 710.

The trial court having based its ruling upon

both the equal protection clause of the Federal

Constitution and its counterpart under the Consti-

tution of the State of California, we discuss the

case in light of each of those provisions. As

indicated below, the standard of review under the

Federal Constitution may be less exacting than

the one we must apply under California law. We

find it appropriate to consider the federal claim

first, noting that the analysis in each part of the

opinion bears upon the other.

Appellees press our application of a princi-

ple that federal appellate courts will defer toa

federal district court judge's interpretation of the

law of the state in which he sits, absent clear

error. See, e.g., Bishop v. Wood, 426 U.S,

341, 344-46 (1976); American Timber & Trading

Co. v. First Nat'l Bank, 511 F.2d 980, 983 (9th

Cir, 1974), cert. denied, 421 U.S, 921 (1975).

We need not decide whether the decision below

was clear error because it was rendered without

the benefit of the California Supreme Court's

subsequent decision in Justus v. Atchison, 19 Cal.

3d 564, 139 Cal. Rptr. 97, 565 P,2d 122 (1977).

That decision clarified the analysis to be applied

A-3

under the California Constitution to the State's

wrongful death statute.

Federal Constitutional Principles

The less difficult question before us arises

under the Federal Constitution. If we finda

rational relation between the statute and a legis-

lative object, then the statute limiting tort liability

is valid and no further or more exacting review is

required. We think this rule follows from two

recent decisions of the Supreme Court sustaining

tort liability limitations. See Duke Power Co. v.

Carolina Environmental Study Group, 438 U.S. 59,

82-84, 93-94 (1978); Mobil Oil Corp. v. Higginbotham,

436 U.S. 618 (1978). The damage limitations im-

posed on tort plaintiffs by the statutory classifications

in those cases were more severe than the one at issue

here. The laws in both cited cases limited the types

or amount of compensatory relief payable, whereas

California's wrongful death statute allows the full

measure of such damages.

In Mobil Oil a certain class of plaintiffs was

deprived of one type of compensatory damages al-

togeth -r. There the dissent observed that

[w]hen death arises from injuries

occurring within a State's territorial

waters, dependents will be able to re-

cover for loss of society. ... But

once a vessel crosses the imaginary

three-mile line, the seamen's depen-

dents no longer have a remedy for an

identical loss, occasioned by an iden-

tical breach of duty.

A-4

436 U.S. at 627 (Marshall, J., dissenting). By

contrast, no such issue is presented here,

Wrongful death plaintiffs in California are com-

pensated for loss of society, as well as all other

losses they personally suffer.

In Duke Power the court sustained a ceiling

on aggregate liability for nuclear accidents. The

amount was arguably arbitrary, but the Court held

that the relations of the ceiling to the purpose of

avoiding excessive liability for nuclear accidents

was sufficiently close to sustain the statute,

Avoidance of excessive liability is also the goal

advanced in support of the limitation precluding

punitive damages in wrongful death suits. See

Justus v. Atchison, 19 Cal. 3d 564, 582, 139 Cal.

Rptr. 97, 109, 565 P,2d 122, 134 (1977), and

discussion infra, pp. 10-11. We find this pur-

pose is sufficient to sustain the validity of the

statute under federal law, and that no more exact-

ing review is required under the Federal Consti-

tution.* A court should be quite certain of its

ground before making a categorical finding that

there is no permissible objective served by a state

statute or that there is utterly no sensible or dis-

cernible relation between the legislature's classi-

fication and a legitimate end. Such caution is

proper because a finding of no state purpose rea-

sonably advanced may indicate merely that a court

finds the purpose less momentous than did the

legislature.

The court below decided the state statute

violated the federal guarantee of equal protection

only after subjecting the classification in question

A-5

to the strictest kind of scrutiny. I placed the

burden of justification on the state. This was

based on a determination that the ''right to be

free from oppressive, fraudulent or malicious

conduct. . . is personal and substantially within

the protections accorded fundamental rights found

expressly and impliedly in the Fifth and Four-

teenth Amendments to the United States Constitu-

tion.'' 427 F.Supp. at 708. (footnote omitted).

We reject this reasoning. Its logic would apply

to all areas of civil law in every state, and all

civil remedies would be subject to the strictest

standard of review. There is no authority for

that proposition generally, and it is quite inap-

propriate in chis case. The plaintiffs, appellees

here, are not without a remedy for personal losses

sustained in fact. California's wrongful death

statute allows full compensation for loss of com-

panionship and financial support. Plaintiffs seek

in addition, and as a matter of constitutional

right, the opportunity to act as private attorneys

general to effect the deterrence and retribution

functions of section 3294 of the California Civil

Code. So far is this opportunity from being a

fundamental personal right that it is an interest

not truly personal in nature at all. It is rather

a public interest, and in defining who may give

it effect the legislature should be given a broad

discretion, similar to the discretion of a prosecu-

tor. The clearly noncompensatory purpose and

the serious and often unpredictable effects of

allowing actions for punitive damages were elabo-

rately discussed by the Supreme Court of the

United States in IBEW v. Foust, 442 U.S. 42,

48-52 (1979). This distinction between compen-

satory and punitive damages explains why a court

A-6

will in general be less likely to hold unconstitu-

tional a limit on the latter. See, e.g., Robert

v. Ford Motor Co., 424 N.Y.S.2d 747 (App. Div.

1980). The case is therefore quite different from

one in which the plaintiff has suffered a serious

loss, be it a personal injury or the loss of com-

panionship and financial support through the death

of a relative, and is left with no effective remedy

and thus no compensation for a grievous depriva-

tion. In such cases, the courts have adopted

remedial innovations through common-law power,

see, e.g., Moragne v. States Marine Lines, 398

U.S. 375 (1970), or through application of equal

protetection principles, see, e.g., Brown v.

Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 509

P, 2d 212 (1973); Dependents of Ondler v. Peace

Officers Benefit Fund, 289 N, W. 2d 486 (Minn.

1980) (limitation excluding only one class of per-

sons unconstitutional and bears no relation to

statute's purpose of providing additional benefits

to dependents of peach officers killed in line of

duty due to unusual risks of work). In this case,

as we have noted, fair compensation is provjded

and the cases just cited are not controlling.

Cf. Glona v. American Guar, & Liab. Ins. Co.,

391 U.S. 73 (1968) (wrongful death statute that

bars recovery for parent when child legitimate

but not illegitimate makes irrational distinction).

The principles of strict scrutiny do not apply,

the statute is rational, and it is valid under the

Federal Constitution.

B. California Constitutional Provisions

An understanding of the federal equal pro-

tection clause peripherally informs the following

A-7

analysis of its analog in California's Constitution. 8

Although the latter is in many respects similar to

the former, see D'Amico v. Board of Medical Ex-

aminers, 11 Cal. 3d1, 16-19, 112 Cal. Rptr. 786,

797-99, 520 P.2d 10, 21-23 (1974), the state courts

find it ''possessed of an independent vitality, "'

Serrano v. Priest, 18 Cal. 3d 728, 764, 135 Cal.

Rptr. 345, 366, 557 P.2d 929, 950 (1976), 9

Notwithstanding the authority of the state

courts to rest judicial invalidation of a statute such

as the one before us upon the provisions of the state

constitution alone, the California Supreme Court in

two significant cases has invalidated limits on tort

recovery in ostensible reliance upon both the fed-

eral equal protection clause and its state counter-

part. See Cooper v. Bray, 21 Cal.3d 841, 148

Cal. Rptr. 148, 582 P.2d 604 (1978); Brown v.

Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P.2d

212 (1973). These cases deserve examination in

the context of the issue before us here. We think

they are distinguishable because the presented tort

limitations that restricted damages in respects that

differentiate them quite broadly from the statute

before us.

Both cases involved the guest statute. This

limitation was more burdensome and anomalous

than other limitations on recovery for four rea-

sons. First, it denied a large class of persons

any compensation at all for grievous physical in-

jury. Second, it was based not on a contemporary

justification, such as limiting recovery to reason-

able amounts of damages personally suffered, but

rather on vestigial analogies to the law of bailments.

See Comment, The Common Law Basis of Automobile

A-8

Guest Statutes, 43 U, Chi. L. Rev. 798 (1976).

Similarly, the guest statute was anomalous in

that it explicitly created a dual standard of care

to two passengers in the same vehicle. Third,

guest statutes were generally thought to be ir-

rational and vestigial, see W. Prosser, Handbook

of the Law of Torts 383 (4th ed. 1971), whereas

the National Conference of Commissioners on

Uniform State Laws has recommended as an Op-

tion a limitation identical to the one challenged

here. Model Survival and Death Act § 3(e) &

Commissioners' Comment (1979). A provision

about which ''there is room for difference in

opinion'' is by very definition not a provision that

is conclusively irrational as a matter of constitu-

tional law. Fourth, the cause of action judicially

altered in Brown and in Cooper is a common-law

cause of action in origin, although it was the sub-

ject of a statute, and the cause of action in the

case before us is viewed by many as wholly statu-

tory. Courts traditionally have played a more

active role in developing the former type of action.

Cf. Justus v. Atchison, 19 Cal. 3d 564, 580-81,

139 Cal Rptr. 97, 108, 565 p.2d 122, 133 (1977)

(legislature has wide discretion in creating new

remedy such as wrongful death). The distinctions

are such that we do not find that the reasoning of

cited significant California cases controls the

question before us.

The principal argument of the district court,

in its reliance on both the federal and state con-

stitutions, was that the punitive damage limitation

is irrational because it permits damages for injury

to property while prohibiting punitive damages for

death of a person in the same accident, 10 427 F,

Supp. at 706. The use of the phrase "punitive

A-9

damages" as a unitary and undifferentiated con-

cept to describe injuries to both property and per-

son obscures an important point. In California

as elsewhere the amount of punitive damages must

be proportional to the amount of compensatory

damages. See, e.g., Allard v. Church of Scien-

tology, 58 Cal. App. 3d 439, 452-53, 129 Cal.

Rptr. 797, 805-06 (1976). Assimilating a punitive

damage award for the destruction of property to

the enormously greater punitive damages likely

to be awarded for the death of a person, and sug-

gesting that the presence of one ought automatically

to import the other, is more effective rhetorically

than it is logically.

There is a further consideration. The fact

that it is the conduct of the actor, and not the in-

jury suffered, which is the principal focus of the

statute, detracts substantially from the argument

that parity or proportion of recovery for every kind

of injury must be maintained. Once a civil duty

has been breached in a malicious and outrageous

way, it is in a sense irrelevant to the punitive and

retributive purposes of the damage statute to re-

quire any injury at all as a condition to recovery.

A scheme motivated purely to achieve deterrence

and retribution at all costs would be one of absolute

liability with no requirement of causation or injury.

This is indeed true of many criminal statutes, but

even this is tempered by prosecutorial discretion.

The logic of plaintiffs' insistence that no limitation

is valid unless it is related to deterrence and puni-

tive goals just as forcefully would require us to rule

that an injury requirement is wholly irrational and

has nothing to do with the propriety of punitive

damages.

A-10

Punitive damages are a hybrid of the civil

and the criminal law. 4 The element of arbitrari-

ness in part stems from the inevitable amalgam.

On the one hand, it is reasonable for the state when

it authorizes private plaintiffs as deputies to bring

suits expressing social condemnation and disap-

proval to place some limits on the plaintiffs' stand-

ing. On the other hand, arbitrariness of a different

sort is inevitable when one considers two plaintiffs

suffering identical traumatic injuries in two differ-

ent accidents, one through negligence, the other

through malice. Though physically and emotion-

ally their ordeals may be the same, the former is

in some sense disadvantaged in comparison to the

latter in that he cannot multiply his recovery

through a punitive damages award.

In short, it is necessary to bear in mind that

the reasons and rules of a remedial law directed

generally toward compensation cannot be trans-

ferred unthinkingly to examine remedies of a very

different kind. These observations are made not

only to buttress our view of the closeness of fit

between the ends and the means of the statutory

scheme in question, but also to make clear that the

result we reach is not the product of mere mech-

anical manipulation of equal protection formalism

under the rational relationship test.

We think that the application of equal protec-

tion under the California Constitution requires that

the classification, in a case such as the one before

us, must advance a discernible purpose in a rational

manner.!4 We hold that the punitive damage limi-

tation is constitutional in this respect. The purpose

A-11

of section 377 is ''to enable the heirs and certain

specified dependents of a person wrongfully killed

to recover compensation for the economic loss and

deprivation of consortium they suffer as a result

of the death.'' Justus v. Atchison, 19 Cal. 3d 564,

581-582, 139 Cal. Rptr. 97, 108-09, 565 P, 2d

122, 133-34 (1977). Another goal of the statute

is ''placing reasonable limits on wrongful death

actions in this state.'' Id. Disallowance of puni-

tive damages serves this goal at least to some

extent: it does reduce the kinds and therefore the

total amounts of claims, and it also preserves

the purely compensatory nature of the cause of

action.

The case of Pease v. Beech Aircraft Corp.,

38 Cal. App. 3d 450, 113 Cal. Rptr. 416 (1974),

illustrates the abrupt upward rise that wrongful

death awards might take if punitive damages were

allowed. For the deaths of four persons who died

in a plane crash, the jury awarded over $4, 000, 000

compensatory damages and over $17, 000, 000 puni-

tive damages. Id., 38 Cal. App. 3d at 454, 113

Cal. Rptr. at 419. The frequently violent and

dramatic circumstances of accidents that lead to

wrongful death actions not only would pose this

danger of extreme awards, but also might increase

the temptation for a jury to award punitive damages

even when concrete elements of fraudulent or inten-

tional wrongdoing are absent.

The limitation also advances the purposes

of the survival and pun:tive damages statutes. In

so stating it is important to note the contrast in

remedies of the two enactments. The survival

statute is best understood as a matter of probate

A-12

law, not tort law. Its goal is to insure that the

estate of a decedent loses no valuable rights

possessed by him during his life by reason of his

death, whether these rights arise from tort, con-

tract, or other principles. It is fortuitous, but

hardly unconstitutional, that the legal consequences

of an event differ depending on whether it occurs

just before or just after death. See, e.g., Guyton

v. Phillips, 606 F.2d 248 (9th Cir. 1979) (complaint

does not state cause of action because conspiratorial

acts allegedly violating 42 U.S.C. §§ 1983, 1985

occurred immediately after defendants shot and

killed decedent); cf. Justus v. Atchison, supra

(wrongful death statute makes fatal injury action-

able one minute after fetus is born, but not one

minute before, held rational and constitutional).

Put differently, it would be the essence of a re-

medial straitjacket for a court to hold that a

legislature cannot constitutionally provide for the

survival, in spite of decedent's death, of claims

he acquired before death, without simultaneously

providing for the creation, becauée of his death,

of a new claim acquired at the instant of death.

There is a second reason for finding the pur-

pose of the punitive damage provision served by

allowing punitive damages in survival actions and

personal injury actions but not in wrongful death ac-

tions. In its own words, section 3294 of the

California Civil Code is to effect punishment and

deterrence, The deterrence is sharpest and the

punishment best focused when there is a payment

directly from the tortfeasor to the victim, the

latter being the person most directly involved in

the accident and best in a position to judge the

culpability of the defendant, and therefore the one

A-13

to whom payment by the tortfeasor signifies

punishment in the most precise form, See

4B. Witkin, Summary of California Law § 853

(8th ed, 1974), 15

For the foregoing reasons we find that

California's disallowance of punitive damages

is wrongful death actions violates neither the

Federal Constitution nor the California

Constitution.

The judgment below is REVERSED and

the case is REMANDED for further proceedings.

A-14

->

FOOTNOTES

1/ The two state causes of action granting

recovery for death are:.

§ 573, Actions by or against executor

or administrator; recovery

of damages; death of plain-

tiff before judgment; simul-

taneous death

Except as provided in this section no

cause of action shall be lost by reason of

the death of any person but may be main-

tained by or against his executor or admini-

strator,.

In an action brought under this section

against an executor or administrator all

damages may be awarded which might have

been recovered against the decedent had

he lived except damages awardable under

Section 3294 of the Civil Code or other damages

imposec primarily for the sake of example

and by way of punishing the defendant.

When a person having a cause of action

dies before judgment, the damages re-

coverable by his executor or administrator

are limited to such loss or damage as the

decedent sustained or incurred prior to his

death, including any penalties or punitive

or exemplary damages that the decedent would

have been entitled to recover had he lived,

and shall not include damages for pain, suf-

fering or disfigurement.

A-15

This section is applicable where a loss

or damage occurs simultaneously with

or after the death of a person who would

have been liable therefor if his death had

not preceded or occurred simultaneously

with the loss or damage.

Nothing in this section shall be con-

strued as making assignable things in

action which are of such a nature as not

to have been assignable prior to the enact-

ment of the 1961 amendment to this sec-

tion.

Cal. Prob, Code § 573 (West Supp. 1979).

§ 377. Wrongful death; right of action;

damages; consolidation of

actions

(a) When the death of a person is caused

by the wrongful act or neglect of another,

his or her heirs or personal representatives

on their behalf may maintain an action for

damages against the person causing the

death, or in case of the death of such

wrongdoer, against the personal repre-

sentative of such wrongdoer, whether the

wrongdoer dies before or after the death

of the person injured. If any other per-

son is responsible for any such wrongful

act or neglect, the action may also be

maintained against such other person, or

in case of his or her death, his or her

personal representatives, In every action

A-16

under this section, such damages may be

given as under all the circumstances of

the case, may be just, but shall not include

damages recoverable under Section 573 of

the Probate Code, The respective rights

of the heirs in any award shall be deter-

mined by the court. Any action brought

by the personal representatives of the de-

cedent pursuant to the provisions of Sec-

tion 573 of the Probate Code may be joined

with an action arising out of the same

wrongful act or neglect brought pursuant

to the provisions of this section, If an

action be brought pursuant to the provisions

of this section and a separate action arising

out of the same wrongful act or neglect be

brought pursuant to the provisions of Sec-

tion 573 of the Probate Code, such actions

shall be consolidated for trial on the motion

of any interested party.

Cal. Civ. Proc. Code § 377 (West Supp. 1979).

The plaintiffs have, by stipulation, forsaken

any opportunities they may have had to recover

punitive damages under the survival statute, § 573,

such as by theories accepted in Stencel Aero Eng'r.

Corp. v. Superior Court, 56 Cal. App. 3d 978,

985-88, 128 Cal.Rptr. 691, 694-97 (1976), and

Dunwoody v. Trapnell, 47 Cal. App. 3d 367, 120

Cal. Rptr. 859 (1975). See 427 F.Supp. at 702

n.1(f), 703n.2. The propriety of raising an equal

protection challenge grounded on an adverse com-

parison between one statute plaintiffs rely on and

another they could possibly have relied on but chose

not to, is questionable, but the argument does not

A-17

influence our decision in any event.

For a discussion of the relation between

the two causes of action, see Sea-Land Servs.,

Inc. v. Gaudet, 414 U.S. 573, 591-95 (1974);

II S. Speiser, Recovery for Wrongful Death 408-

11 (2d ed. 1975). See also Malone, The Genesis

of Wrongful Death, 17 Stan, L. Rev. 1043 (1965),

Exemplary damages are governed by the

following provision:

§ 3294, Exemplary damages; when

allowable

In an action for the breach of an obliga-

tion not arising from contract, where the

defendant has been guilty of oppression,

fraud, or malice, express or implied, the

plaintiff, in addition to the actual damages,

may recover damages for the sake of ex-

ample and by way of punishing the defendant.

Cal. Civ. Code § 3294 (West 1970).

2/ California courts have uniformly held that

the statute allowing punitive damage recoveries

generally in tort actions is available for death

recoveries only in survival actions and not in

wrongful death suits. See e.g., Tarasoff v.

Regents of the University of California, 17 Cal.

3d 425, 450, 131 Cal. Rptr. 14, 33, 551 P.2d

334, 353 (1976); Pease v. Beech Aircraft Corp.,

38 Cal App. 3d 450, 113 Cal. Rptr.416 (1974);

Note, 15 Santa Clara Law.

A-18

Various briefs filed for plaintiffs -appellees

advance plausible historical and policy arguments

to the effect that this limitation is unnecessary

or incorrect as a matter of statutory interpretation.

The arguments would be germane if made to the

California Supreme Court, but we are not ina

position to weigh them. ‘We are bound to follow

that court's 1977 holding to the contrary in Tara-

soff, Erie R.R. v. Tompkins, 304 U.S, 64

(1938), The correctness of Tarasoff's statutory

interpretation is supported by the legislature's

failure to amend § 377 to include punitive damages

despite attention having been drawn to their

omission,

3/ The relevant sections of the California

Constitution are:

Due process and equal protection; pupil

school assignment or transportation; privileyes

and immunities

Sec. 7. (a) A person may not be de-

prived of | fe, liberty, or property without

due process of law or denied equal pro-

tection of the laws. ...

Cal. Const. art. I, § 7 (as amended, 1974, 1979);

Uniform operation of laws; local or special

laws

Sec. 16. (a) All laws of a general nature

have uniform operation,

A-19

id., art. IV, § 16 (a) (as amended, 1974),

4/ We do not apply a middle-tier analysis for

three reasons. First, both state and federal

Supreme Courts have declined frequent invita-

tions to announce or articulate such an analysis.

Second, both courts have analyzed tort recovery

limits in terms of its rational bearing upon a

legislative objective. Third, the relatively

nongrievous deprivation, if indeed it can be

called such, of a limit om who may act as a pri-

vate attorney general by seeking punitive damages

makes this case particularly inappropriate to

inaugurate such an analysis. Additional draw-

backs of this proposed innovation are discussed

in Hawkins v. Superior Court, 22 Cal. 3d 584,

607-10, 150 Cal. Rptr. 435, 450-51, 586 P, 2d

916, 931-32 (1978) (Bird, C.J., concurring);

Linde, Due Process of Lawmaking, 55 Neb. L.

Rev. 197 (1976).

5/ Judicial restructuring of a matter as com-

plex as the incidence and effects of punitive

damages would be especially prone to unforeseeable

error, See generally Breit & Elzinga, Antitrust

Enforcement and Economic Efficiency: The Uneasy

Case for Treble Damages, 17 J. L. & Econ, 329

(1974) (complex analysis necessary to evaluate

utility of exemplary damages in one area of civil

law); Note, State Economic Substantive Due Pro-

cess: A Proposed Approach, 88 Yale L, J. 1487,

1492-94 & n.26, 1508-10 & n. 88 (1979) (judicial

alteration of economic legislation may be dysfunc-

tional).

A -20

6/ See, e.g., Washington v. Confederated

Bands and Tribes, 439 U.S, 91979) (reversing

appellate holding ''checkerboard" jurisdictional

allocation wholly arbitrary and irrational).

7/ This point also serves to distinguish the

recent decision of the California Court of Appeal

in American Bank & Trust Co. v. Community

Hospital, 104 Cal. App. 3d 219, 163 Cal. Rptr.

513 (1980), in which the court invalidated a medi-

cal malpractice recovery limitation. The limi-

tation restricted the amount of compensatory

damages that were recoverable. Additionally,

the effect of the law was somewhat discriminatory,

in that one particular class of tortfeasors -- those

guilty of medical malpractice -- was benefited at

the expense of a narrower class of plaintiffs

-- those injured by medical malpractice.

8/ See note 3, supra.

9/ The California equal protection guarantee,

while structurally similar to the federal, has on

occasion been applied differently in that some

interests or categories are considered funda-

mental or suspect under the former but not the

latter, See, e.g., Serrano v, Priest, 18 Cal.

3d 728, 135 Cal. Rptr. 345, 557 P,2d 929 (1976);

Sail'er Inn v. Kirby, 5 Cal. 3d 1, 95 Cal. Rptr.

329, 485 P.2d 529, 538-43 (1971). In addition,

when an interest is important but not ''fundamental,

the more deferential mode of equal protection

analysis may be applied by California courts in a

somewhat stricter fashion than usual, by requiring

a closer fit between ends and means than is the

A-21

norm. Compare Cooper v. Bray, 21 Cal. 3d

841, 148 Cal. Rptr. 148, 582 P,2d 604 (1978)

(limitation on tort cause of action unconstitutional)

with Justus v. Atchison, 19 Cal. 3d 564 139 Cal.

Rptr. 97, 565 P.2d 122 (1977) (limitation on tort

cause of action constitutional); cf. pp. 7-8 infra

(discussing why unusual nature of guest statute

elicited particular constitutional scrutiny in

Cooper). It may be a significant distinction

between tne two decisions just cited that Cooper

involvec a common-law, and Justus a statutory,

cause of action.

10/ The trial court formulated a hypothetical

illustration to demonstrate the law's alleged ir-

rationality. See 427 F.Supp. at 706. The

hypothetical facts, briefly, are a defendant's

willful and reckless driving, and his colliding

with a family car, thus killing two passengers,

and causing other personal injuries and property

damage. The trial court considered it a para-

digm of unreason that California law ''would per-

mit the recovery of punitive damages as well as

compensatory damages for injury [to property

and non-fatal bodily injury]... but would not

sanction the recovery of punitive damages for the

death of either the mother or the father... ."'

Id. The particulars of this hypothetical would

be less important if they did not embody the core

of criticism nearly uniformly directed at the

limitation at issue here. See, e.g., McClelland

& Truett, Survival of Punitive Damages in Wrong-

ful Death Cases, 8 U.S.F.L. Rev. 585 (1974);

Note, Punitive Damages in Wrongful Death, 20

Clev. St. L. Rev. 301 (1971). As the entirety

of our discussion indicates, we believe that the

A-22

basis of these criticisms of the limit prohibiting

punitive damages is unsound,

11/ See Note, The Imposition of Punishment

by Civil Courts: A Reappraisal of Punitive

Damages, 41 N.Y.U.L. Rev. 1158, 1168-69

(1966),

12/ See generally Note, Punitive Damages

Under Federal Statutes: A Functional Analysis,

60 Calif. L. Rev. 191 (1972); Note, supra

note 11.

13/ Cf. Rabin, Dealing with Disasters: Some

Thoughts on the Adequacy of the Legal System,

30 Stan. L. Rev. 281, 297 (1978) (noting that

even where punitive damages recoverable,

arbitrary factors may govern their award).

14/ This is a synthesis of the California Supreme

Court's various formulations of the applicable state

equal protection standard. See, e.g., Cooper v.

Bray, 21 Cal. App. 3d 841, 855, 148 Cal. Rptr.

148, 156, 582 P.2d 604, 612 (1978) (serious and

genuine inquiry into correspondence between

statute's goals and classifications); Justus v.

Atchison, 19 Cal. 3d 564, 581, 139 Cal. Rptr.

97, 108, 565 P,2d 122, 133 (1977) (classification

will be upheld unless beyond rational doubt arbi-

trary discrimination between similar classes

made without reasonable cause); Brown v. Merlo,

8 Cal. 3d 855, 861, 106 Cal. Rptr. 388, 392, 506

P, 2d 212, 216 (1973) (classification must rest

upon difference having fair and substantial rela-

tion to object of legislation) (borrowing standard

from U.S. Supreme Court's gender cases); Note,

A-23

Judicial Activism in Tort Reform: The Guest

Statute Exemplar and a Proposal for Comparative

Negligence, 21 U.C. L.A. L. Rev. 1566, 1569-86

(1974).

15/ It is not unreasonable to assume that the

person best in a position to judge the culpability

of a defendant, and thus the propriety of suing

for punitive damages, is the person most directly

involved in the accident or invasion of right, namely,

the victim himself. This accounts for allowing

punitive damages in personal injury actions, where

the victim is the plaintiff, and in survival actions,

where by hypothesis the victim survives the acci-

dent and may survive long enough to give his heirs

and representatives his own account of the tortious

occurrence, but not in wrongful death actions such

as in the case before us where the victim's death

is nearly instantaneous. See generally Note,

supra note 12; Note, supra note 11.

16/ In so holding we join other courts which

have determined that similar limits on wrongful

death statutes do not violate the federal guarantee

of equal protection of the law. See Huff v. White

Motor Corp., 609 F.2d 286, 298 (7th Cir. 1979);

Cyr v. B. Offen & Co., 501 F.2d 1145, 1148 n.2

(1st Cir. 1974); Johnson v. International Harvester

Co., Civ. No. A3-79-224 (D.N.D. Apr. 9, 1980).

A-24

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JUL 29 1980

RICHARD H. DEANE

Clerk U.S, Court of Appeals

)

In re PARIS AIR CRASH of March 3, 1974)

McDonnell Douglas Corporation,

~"

Defendant-A ppellant,

In re PARIS AIR CRASH of March 3, 1974

General Dynamics Corporation,

Defendant-A ppellant,

Nos.

7-2099

7-2266

Vv.

1 +]

PLAINTIFFS IN MDL 172

Plaintiffs -A ppellees.

ee

Before: GOODWIN and KENNEDY, Circuit Judges,

and EAST, * District Judge.

*Honorable William G. East, Senior United States

District Judge for the District of Oregon, sitting

by designation.

B-1

The panel as constituted in the above case

has voted to deny the petitions for rehearing.

Judges Goodwin and Kennedy have voted to reject

the suggestions for a rehearing en banc, and

Judge East has recommended rejection of the

suggestions for rehearing en banc,

The full court has been advised of the

suggestions for en banc rehearing, and no judge

of the court has requested a vote on the sugges-

tions for rehearing en banc. Fed. R. App. P.

35(b).

The petitions for rehearing are denied and

the suggestions for a rehearing en banc are

rejected.

“-

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

11 AUG 1980

RICHARD H. DEANE

Clerk U.S. Court of Appeals

In Re PARIS AIR CRASH of March 3, 1974 )

McDONELL DOUGLAS CORPORATION, )

) No.

Defendant/A ppellant ) 77-2099

) 77-2266

In Re PARIS AIR CRASH of March 3, 1974 )

GENERAL DYNAMICS CORPORATION, )DC CV

) MDL 172

Defendant/ Appellant, )

) PH & MLR

vs.

PLAINTIFFS IN MDL 172

DORIS LEAH KALINSKY, et al.,

eee eee ee

Plaintiffs / Appellees.

ORDER ON MOTION FOR STAY OF MANDATE

(Rule 41 (b) Fed. R.App. P. )

Upon due consideration of appellees motion

for stay of the mandate of this Court in the above

cause pending the filing, consideration and dis-

position by the Supreme Court of the United States

of a petition for writ of certiorari, such petition

to be filed in the Clerk's Office of the Supreme

C-l

Court of the United States on or before

September 06, 1980,

IT IS ORDERED that the motion for stay of

mandate be, and the same is hereby granted. *

s

United States Circuit Judge

KENNEDY

*In the event that the motion for stay of mandate

and the petition for writ of certiorari are granted

then this stay will continue pending the final dis-

position of the case by the Supreme Court of the

United States.

APPENDIX D

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In Re PARIS AIR CRASH

of March 3, 1974

McDONNELL DOUGLAS CORPORATION,

Defendant-A ppellant,

In Re PARIS AIR CRASH

of March 3, 1974

GENERAL DYNAMICS CORPORATION,

Defendant-A ppellant,

vs.

PLAINTIFFS IN MDL 172,

Plaintiffs-A ppellees.

\(C.D. Cal.

) No. MDL-

) 172-PH&R)

)

JPROPOSED

) ORDER

me meee eee ee

Pending the filing of a stipulation by the

parties and

Good cause appearing therefor, it is here-

by ordered:

As The brief of appellees Doris Leah

Kalinsky and Sol Kalinsky which has been filed

in the above-captioned actions is ordered sealed.

2. The attorneys of record for appellees

Doris Leah Kalinsky and Sol Kalinsky shall collect

all copies of said brief which have been delivered

to any person other than a party to this appeal,

one of the attorneys of record for a party to this

appeal, the United States Court of Appeals for the

Ninth Circuit or the United States District Court

for the Central District of California.

3. All parties to this appeal and their a

attorneys of record are ordered to obey the order

concerning disclosure of deposition testimony and

exhibits which were signed by the Honorable

Pierson M. Hall on January 17, 1975;

4. The parties to this appeal and their

attorneys of record are ordered not to give a copy

of the brief of the appellees Doris Leah Kalinsky

and Sol Kalinsky to any person who is neither a

party to this appeal nor one of the attorneys of

record for a party to this appeal. The parties

and their attorneys are further ordered not to

allow any person who is neither a party nor an

attorney of record for a party to read or copy any

portion of said brief,

5. This order shall remain in force and

effect until dissolved or modified by further

order of this court.

DATED: June 15, 1978

Si

Shirley M, Hufstedler

United States Circuit Judge

APPENDIX E

RECEIVED

JUN 16 1978

NOBLE

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In Re PARIS AIR CRASH

of March 3, 1974

McDONNELL DOUGLAS CORPORATION, )

Defendant-A ppellant

In Re PARIS AIR CRASH

of March 3, 1974

GENERAL DYNAMICS CORPORATION,

Defendant-A ppellant,

vs.

PLAINTIFFS IN MDL 172,

Plaintiffs -A ppellees.

) NO,

) 77-2266

)

)(C.D,. Cal.

) No. MDL-

) 172-PH&R)

)

) PROPOSED

_) ORDER

me meee eee ee

Good cause appearing therefor, it is

hereby ordered:

i. The brief of appellees Doris Leah

Kalinsky and Sol Kalinsky which as been filed in

the above-captioned actions is ordered sealed.

2. The attorneys of record for appellees

Doris Leah Kalinsky and Sol Kalinsky shall collect

all copies of said brief which have been delivered

to any person other than a party to this appeal,

one of the attorneys of record for a party to this

appeal, attorneys for amicus curiae, the United

States Court of Appeals for the Ninth Circuit or

the United States District Court for the Central

District of California,

3. All parties to this appeal and their

attorneys of record and the attorneys for amicus

curiae are ordered to obey the order concerning

disclosure of deposition testimony and exhibits

which was signed by the Honorable Peirson M,

Hall on January 17, 1975. ;

4. The paraies to this appeal and their

attorneys of record and the attorneys for amicus

curiae are ordered not to give a copy of the brief

of the appellees Doris Leah Kalinsky and Sol

Kalinsky to any person who is neither a party to

this appeal nor one of the attorneys of record for

a party to this appeal nor an attorney for amicus

curiae. The parties and their attorneys and the

attorneys for amicus curiae are further ordered

not to allow any person who is neither a party nor

an attorney of record for a party nor an attorney

for amicus curiae to read or copy any portion of

E-2

said brief.

De The record on appeal is ordered

augmented to include the memoranda which are

included in the Kalinsky brief as addenda ''A'"'

and '"'B'', All copies of these memoranda which

- are now or might in the future be filed with the

Court of Appeals of the Ninth Circuit are ordered

sealed. This paragraph does not preclude appel-

lants General Dynamics Corporation and

McDonnell Douglas Corporation from making a

motion to strike the memoranda from the record

and from the Kalinsky brief. This paragraph

is not a decision on the merits of the argument

about whether or not the memoranda should be

contained in the record on appeal or included

or referred to in the Kalinsky brief.

6. If appellants General Dynamics

Corporation and McDonnell Douglas Corporation

prevail on a motion to strike the memoranda and

the ''Statement of Facts'' appearing on pages one

through six of the Kalinsky brief, the Kalinsky

appellees may refile the brief, absent the

stricken portions without further change. In any

event, the Kalinsky appellees shall not be pre-

cluded from rewriting those portions of the brief

that are stricken in a manner that is consistent

with the ruling of the court,

1. The appellants, General Dynamics

Corporation and McDonnell Douglas Corporation

have agreed not to seek sanctions against either

the Kalinsky appellees or their attorneys by

reason of the inclusion of the memoranda and

mention of them in the Kalinsky brief.

E-3

8. This order shall remain in force and

effect until dissolved or modified by further

order of this court.

DATED:

s

Shirley M. Hufstedler

United States Circuit Judge

DATED: June 16, 1978

Ss

David Noble

Attorney for Plaintiff-A ppellees

Kalinsky

DATED: June 16, 1978

a

TUTTLE & TAYLOR

By Ss

Stanley C. Fickle

Attorneys for Defendant-A ppellant

McDonnell Douglas Corporation

DATED: June 16, 1978

OVERTON, LYMAN & PRINCE

By s

Gregory A. Long

Attorneys for Defendant-A ppellant

General Dynamics Corporation

E-4

\

APPENDIX F

MENDES & MOUNT

James M. FitzSimmons

27 William Street COPY

New York, New York 10005 Copy for the Judge

(212) 341-7100 RECEIVED

Jan 22 1975

KIRTLAND & PACKARD

Robert C, Packard MORGAN, WENZEL &

Joseph E. Gregorich McNICHOLAS

626 Wilshire Boulevard

Los Angeles, California 90017

(213) 624-0931

TUTTLE & TAYLOR INCORPORATED

William A. Norris FILED

Joseph R. Austin JAN 30 1975

609 South Grand Avenue Clerk, U.S. District

Los Angeles, California 90017 Court

(213) 689-4500 Central-District of

California

Attorneys for Defendant

McDONNELL DOUGLAS CORPORA TION

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

In Re: ) M.D.L. 172

PARIS AIR CRASH OF ) _ All Cases

)

March 3, 1974

ORDER

WHEREAS, on August 6, 1974, this Court

entered an order denying McDonnell Douglas

Corporation's Motion for a Protective Order

under F.R.C.P. 26(c) to prevent the release or

F-1

availability of the depositions and exhibits to any

representatives of the press, except as to Item

(6) of FL.R.C.P, 26(c); and

WHEREAS, on December 2, 1974, in the

case of Times Newspapers Limited (of Great

Britain) v. McDonnell Douglas Corporation, et al.,

No. CV 74-2658-PMH, this Court ruled that the

Federal Rules of Civil Procedure assure the

sealing and privacy of depositions until ordered

opened by the Court, and that the public can have

no right to know what the deposition testimony in

these cases is until the Court nows what it is; and

WHEREAS, based on the Affidavit of James

R. FitzSimons, filed herein on January 15, 1975,

and other good cause appearing to the Court, and

for the purpose of enforcing the principles of

sealing and privacy of depositions, and subject

to further Order of this Court:

IT IS ORDERED:

(1) That, during the pendency of this litiga-

tion, no party to these actions, or officers, em-

ployees, agents or counsel of such party shall

disclose to the press or other news media or to

any person not directly interested in this litigation

the testimony of any deponent in these actions;

nor shall any person directly interested in this

litigation to whom any such testimony is disclosed

disclose to the press or other news media or to

any person not directly interested in this litigation

any such testimony;

(2) That the officer taking the deposition

furnish copies thereof to no one except parties to

these actions, or those who may become parties,

and the deponent, if so requested, and their re-

spective counsel, and that said persons permit

no one not directly interested in this litigation to

examine such copies;

(3) That, during the pendency of this litiga-

tion, no party to these actions, or officers,

employees, agents or counsel of such party, shall

disclosed to the press or other news media or to

any person not directly interested in this litigation

any document produced by any deponent or by any

party to these actions or the content of any such

documents; nor shall any person direct ly inter-

ested in this litigation to whom any such documents

is disclosed disclose to the press or other news

media or to any person not directly interested in

this litigation any such document.

(4) That any person directly interested in

this litigation to whom any such testimony or

document is disclosed shall, before any such

disclosure is made, be shown a copy of this Order;

(5) Solicitors, experts and technical advisors

assisting parties and their counsel in this litigation

shall for purposes of this Order be deemed persons

directly interested in this litigation, and nothing in

this Order shall prevent disclosure of any deposi-

tion testimony, documents or other information to

appropriate courts, legislative committees or

governmental investigative bodies in response to

any appropriate request therefrom;

F-3

(6) Nothing herein shall be deemed a finding

by this Court that disclosure has heretofore been

made by any person in violation of any Order of

this Court, or that any counsel of record herein

has violated any Order of this Court or any stipu-

lation of counsel;

(7) This Order shall be binding on all per-

sons who may become parties to this litigation in

the future, and on officers, employees, agents

and counsel of such persons;

(8) The Affidavit of James M. FitzSimons,

referred to herein, the exhibits attached thereto,

the report's notes of the in camera proceedings

relating to this Order, and the newspaper article

submitted to this Court in chambers, shall remain

sealed and remain in.camera until further Order

of this Court, and any transcript of such reporter's

notes shall be subject to the terms of this Order.

DATED: January 17, 1975.

(PEIRSON M. HALL)

United States District Court Judge

STIPULATED AND AGREED:

For Plaintiffs Committee:

ss

For Defendant and Plaintiff T.H.Y.:

ss

for Defendant McDonnell Douglas Corporation:

ss

For Defendant General Dynamics Corporation:

ss

For Defendant United States of America:

ss