Appendix — Piper Aircraft Co. v. Reyno
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Office-Supreme Court, U.S.
FILED
Nos. 80-848, 80-883 MAY @ (30
ALEXANDER L. STEVAS,
CLERK .
Supreme Court of the United States
October Term, 1980
PIPER AIRCRAFT COMPANY, a Corporation,
iy Petitioner,
GAYNELL REYNO, as Personal Representative of the
Estates of William Fehilly, et al.,
Respondent.
Petitioner,
HARTZELL PROPELLER, INC.,
v0.
GAYNELL REYNO, as Personal Representative of the
Estates of William Fehilly, et al.,
Respondent.
On Writs of Certiorari to the United States Court of Appeals
for the Third Circuit
CONSOLIDATED JOINT APPENDIX
Cuantes J. McKetvey Dante C. Catacart
McNeaney, Pace, VANDERLIN Macana, Carucart, McCartuy
& HALL & Prenny
433 Market Street 1801 Avenue of the Stars
Witlinoe u P. Ivania 17701 py a California 90067
ennsy es,
(717) 298 6555 (213)
Counsel of Record for Petitioner, | Counsel of Record for
Piper Aircraft Company Respondent, Gaynell Reyno,
Warner W. GARDNER ore,
[Counsel of Record]
Nancy J. Brecsrerv
Sues & GARDNER
1800 Massachusetts Avenue, N.W.
Ww D.C, 20036
(202) 2000
Counsel for Petitioner,
Hartzell Propeller, Inc.
(Additional Counsel on Inside Front Cover)
PETITIONS FOR CERTIORARI FILED NOVEMBER 25, 1980
CERTIORARI GRANTED FEBRUARY 23, 1981
Ann S. PeprpERMAN
McNerney, Pace, VANDERLIN
& Hai
Kerra A. Jones
Fuusricat & JAWORSKI
1150 cut Avenue, N.W.
(202) 462-6800
AMEs M., FirzsmmMons
osepH J. ASSELTA
TEPHEN TUCKER
Menves & Mount
3 Park Avenue
New York, New York 10016
(212) 683-2400
Attorneys Petitioner,
Haresll Propallon Ine.
TABLE OF CONTENTS
Chronological List of Relevant Docket Entries ............ Al
Notice of Motion and Motion of Defendant Hartzell Pro-
peller, Inc. to Dismiss for Lack of Jurisdiction Over the
Person or for Transfer, Filed August 30, 1977 ......... A2
Order Quashing Service of Process as to Defendant Hartzell
and Transferring Action to Middle District of Pennsyl-
vania Under 28 U. S. C. § 1404(a), Filed December 21,
BE ebhehco sbbeceedbcckunddee ebecaseanheds sedeeses A4
Motion of Defendant Hartzell Propeller, Inc. to Dismiss and
Exhibits “A” and “B” Thereto, Filed May 15, 1978 ..... A6
Motion of Defendant Piper Aircraft Company for Judgment
on the Pleadings or for Summary Judgment, Filed May
PE Navan ddvabaWededacd Chvebadsgondceseededsone Al3
Affidavit of Charles J. McKelvey, Filed May 24, 1978 ...... Al5
Affidavit of Donald Ian Kerr MacLeod, Filed May 25, 1978 Al8
Transcript of Oral Argument Before the District Court, Held
OE EL IU Suave cediccscctcvecedcdcvacseqes A2l
Affidavit of Daniel C. Cathcart in Opposition to the Supple-
mental Brief in Support of Motion to Dismiss by Hartzell
Propeller, Inc., Filed December 4, 1978 .............+. A58
Exhibit “A” to Supplemental Memorandum of Hartzell Pro-
peller, Inc. in Support of Motion to Dismiss on Forum
Non Conveniens Grounds, Filed February 5, 1979 ..... A60
Stipulation, Filed May 14, 1979 ............cececceeceeees A63
Affidavit of Ronald C. Scott, Filed September 17, 1979 ..... A64
Memorandum of the District Court, Filed October 19, 1979 .. A66
Order of the District Court, Filed October 19, 1979 ........ A89
Affidavit of Ronald C. Scott and Exhibit “A” Thereto, Filed
COE GUN MOVE vaccesoevsctochinescrbevecdecscccces A90
y
TABLE OF CONTENTS (Continued)
Judgment of the Court of Appeals, Filed July 24, 1960 .....
Order of the Court of Appeals Sur Petition for Rehearing
En Banc, Filed August 27, 1980 ..........sseeeeesees
Order of the Court of Appeals Amending Opinion, Filed
eather WA MOD c ocsce cep ehexec can cessdandccane
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
July 21, 1977—Plaintiff’s original Complaint filed in
the Superior Court of the State of California for the
County of Los Angeles.
August 24, 1977—Petition for Removal to the United
States District Court for the Central District of California
filed.
August 30, 1977—Motion of Defendant Hartzell
Propeller, Inc. to Dismiss for Lack of Jurisdiction Over
the Person or for Transfer filed.
December 21, 1977—Order entered quashing service
of process as to Hartzell Propeller, Inc. and transferring
the action to the United States District Court for the
Middle District of Pennsylvania.
May 15, 1978—Motion of Defendant Hartzell Propel-
ler, Inc. to Dismiss filed.
May 15, 1978—Motion of Defendant Piper Aircraft
Company for Judgment on the Pleadings or for Summary
Judgment filed.
October 19, 1979—Order entered dismissing the ac-
tion on condition that Defendants consent to jurisdiction
of the Scottish courts and waive any statute of limitations
defense.
December 7, 1979—Plaintiff's notice of appeal filed.
July 24, 1980—Opinion and Judgment of the United
States Court of Appeals for the Third Circuit entered.
August 27, 1980—Order entered denying the petition
of Hartzell Propeller, Inc. for rehearing en banc.
September 15, 1980—Order entered amending the
Opinion of the Court of Appeals.
(Al)
AQ Notice and Motion to Dismiss
IN THE
UNITED STATES DISTRICT COURT
For THE CENTRAL District OF CALIFORNIA
No. 77-3181-IH
GAYNELL REYNO, as Personal Representative of the
Estates of William Fehilly, Liam Stewart Fehilly,
William James McDougall Storm, David Vincent
Moran, and Peter C: “ningham Scott,
Plaintiff
0.
PIPER AIRCRAFT COMPANY, a Corporation; AVCO
LYCOMING ENGINE GROUP, a Division of AVCO
CORPORATION; HARTZELL PROPELLER, INC.,
a Corporation
Defendants
NOTICE OF MOTION AND MOTION OF DEFEND-
ANT HARTZELL PROPELLER, INC. TO DISMISS
FOR LACK OF JURISDICTION OVER THE
PERSON OR FOR TRANSFER
Filed August 30, 1977
To Plaintiffs and to Their Respective Counsel of Record,
Magana & Cathcart:
PLease Take Notice that the undersigned will bring
a Motion to Dismiss for Lack of Jurisdiction Over the
Person (FRCP § 12(b)) and Motion for Transfer Under
28 USCA §1404(a) on for hearing before the above-
entitled Court at Room 2, United States Court House, 312
North Spring Street, Los Angeles, California 90012, on
Notice and Motion to Dismiss A3:
the 3rd day of October, 1977, at the hour of 10:00 a.m.,
or as soon thereafter as counsel can be heard, before the
Honorable Irving Hill.
The defendant, HartzE.. Deletes — a cor-
poration, will move the Court as follows:
1. To dismiss this action on the grounds that de-
fendant, HarTzELL Prope.ier, INnc., is a corporation
organized under the laws of the State of Ohio, with the
principal place of business in the State of Ohio, and was
not and is not subject to the personal jurisdiction of the
United States District Court, Central District of California,
and of which more clearly appears in the Affidavit of Mr.
Richard Grimes, submitted herewith.
2. In the alternative, to transfer said action to the
United States District Court, District of Pennsylvania, for
the convenience of parties and witnesses, in the interest
of . justice.
A4 Order Quashing Service of Process
ORDER QUASHING SERVICE OF PROCESS AS TO
DEFENDANT HARTZELL AND TRANSFER-
RING ACTION TO MIDDLE DISTRICT
OF PENNSYLVANIA UNDER
28 U. S. C. § 1404(a)
Filed December 21, 1977
[caption omitted in printing]
There came before the Court on December 12, 1977,
for hearing the following motions:
1. Motion of Defendant Hartzell Propeller, Inc., filed
August 30, 1977, to dismiss or in the alternative transfer
the action.
2. Motion of Defendant Piper Aircraft Company,
filed November 23, 1977, to transfer the action to the
Eastern District of Pennsylvania under the provisions of
§ 1404(a). Since the hearing, the Court is advised that
the reference in said motion to the Eastern District of
Pennsylvania was a clerical error and that, as counsel for
all parties agree, the motion was intended to refer to the
Middle District of Pennsylvania at Williamsport.
The Court having heard argument and having consid-
ered the various Points and Authorities and other docu-
ments filed in support of and in opposition to said motions,
Orpers AS FoLLows:
1. The motion of Defendant Hartzell Propeller, Inc.
to dismiss for lack of personal jurisdiction, is treated by the
Court as a motion to quash service of said Defendant and
is granted. The Court finds that the exercise of personal
jurisdiction over said Defendant under the facts and cir-
cumstances of this case is not in accord with due process
and is not authorized by the California long arm statute.
Order Quashing Service of Process A5
Cf. L. D. Reeder Contractors of Arizona v. Higgins In-
dustries, 265 F. 2d 768 (9th Cir. 1959). The Court de-
clines to dismiss the action as to said Defendant Hartzell
in view of its order hereinafter set forth transferring the
action to the Middle District of Pennsylvania in which
valid service of said Defendant Hartzell can be obtained.
2. The Court grants the said motion of Defendant
Piper Aircraft Company to transfer the action under 28
U. S. C. § 1404(a). The Court finds that the instant ac-
tion could have been brought in said District and that the
transfer of the action to said District is for the conven-
ience of parties and witnesses and in the interest of jus-
tice. The action is Onverep forthwith transferred to the
United States District Court for the Middle District of
Pennsylvania at Williamsport.
3. In the event of any appeal from either of the or-
ders embodied herein, the Court Orvers that a transcript
of the proceedings in open court on December 12, 1977,
shall be ordered by the appellant and made a part of the
record on appeal.
4. The Clerk shall transmit a copy of this Order by
United States mail to counsel for all parties.
Daten: December 21, 1977.
/s/ Invinc Hix
Irving Hill, Judge
United States District Court
A6 Motion to Dismiss
MOTION OF DEFENDANT HARTZELL PROPEL-
LER, INC. TO DISMISS AND EXHIBIT “A”
THERETO
Filed May 15, 1978
[caption omitted in printing]
Anp Now, to wit, this | day of May, 1978, comes
defendant, Hartzell Propeller, Inc. and moves this Honor-
able Court for an Order dismissing the Complaint on the
following grounds:
1. Although the action brought by plaintiff sounds in
wrongful death and purports to be on behalf of the Es-
states of the decedents in an aircraft accident, there is no
wrongful death action in Scotland, no action may be
brought under Scottish law for the death of a decedent
such as is attempted to be brought here and the proper
law to be applied to the case is the law of Scotland. (See
Affidavit “B”).
2. The Complaint sounds, inter alia, in strict liability
in tort, where the applicable law, the law of Scotland, does
not recognize the concept of strict liability in tort and
would not apply such law. (See Affidavit “B”).
3. The accident which caused the deaths of the de-
cedents in Scotland appears to have been caused at least in
part by improper maintenance of the aircraft and at least
in part by improper operation of the aircraft. (See Af-
fidavit “A”, paragraphs 8, 9 and 10).
4. Service of process upon the company which had
maintained the aircraft and upon the company which was
operating it in commerce as an air taxi carrier does not
appear possible within the United States but does appear
eI in Scotland. (See Affidavit “A”, paragraphs 2, 3
4).
Motion to Dismiss A7
5. That all parties necessary to the complete disposi-
tion of this matter can be brought before the Court in
6. That all witnesses to the accident and most wit-
nesses involved in the case are residents and citizens of
England or Scotland and it would therefore be extremely
inconvenient and unnecessarily expensive to try the case
in the United States.
7. That no prejudice will be occasioned to any par-
ties by reason of dismissing this action and allowing a
subsequent action to be brought in Scotland.
Wuenerore, Hartzell Propeller, Inc. prays this Hon-
orable Court to enter an Order dismissing plaintiff's Com-
plaint. And defendant will ever pray, etc.
A8 Motion to Dismiss
Exhibit “A”
[caption omitted in printing]
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA } sai
County OF PHILADELPHIA £
Ronap C. Scorrt, first being sworn, deposes and says
that he is a member of the Bar of the Supreme Court of
Pennsylvania, having attorney identification no. 13494,
and that he is attorney for defendant, Hartzell Propeller,
Inc., and is authorized to take this affidavit; that he has
conducted an investigation into the accident from which
this litigation arises and that the facts set forth below are
true to the best of his knowledge, information and belief:
1. The aircraft involved in the accident, in which
plaintiffs decedents appear to have been killed, had been
manufactured in Pennsylvania prior to 1970 and sold to an
American aircraft dealer.
2. That the aircraft involved in the accident was and
had for a long time been owned, operated and maintained
by an English air charter company which does not appear
to do business in the United States.
3. That the pilot of the aircraft was a commercial
pilot, a citizen and resident of Scotland and in the employ
and within the course and scope of his employment as a
pilot for a Scottish air taxi company, which does not ap-
pear subject to service of process in the United States.
4. That all maintenance on the aircraft for several
years prior to the accident appears to have been done in
Great Britain with none of it accomplished in the United
States.
Motion to Dismiss A9
5. That, at the time of the accident, the aircraft was
on a commercial air charter within the British Isles and
was flying from England to Scotland.
6. That the accident here involved occurred in Scot-
land.
7. That all of the decedents appear to have been citi-
zens and residents of Scotland.
8. That the British Department of Trade investiga-
tors found post accident indications that the nuts on all
four of the mounting bolts of the propeller governor were
loosened to the point at which a substantial loss of oil
would occur, completely depleting the engine’s oil supply
in a matter of minutes.
9. That the British Department of Trade investigators
found signs at the site of the accident which could be in-
terpreted to indicate that the engine with the four loosened
nuts and presumed oil leak was not developing power
when the aircraft crashed.
10. That the British Department of Trade investiga-
tors found signs at the accident scene which could be in-
terpreted as indicating that the aircraft had struck the
ground in a tail spin after the pilot lost control of the air-
craft upon losing power in the one engine.
11. That he has consulted with Hartzell Propeller,
Inc. and with counsel for Piper Aircraft Corporation, the
only two defendants who have been served in this matter,
and has obtained their agreement to accept service of
process in an action on behalf of the proper parties which
is promptly and timely brought in Scotland.
12. That he has determined that the, statute of limita-
tions for bringing an action arising out of this accident in
Scotland has not yet expired.
Al0 Motion to Dismiss
13. That the wreckage of the aircraft, all witnesses to
the accident and subsequent investigation and all witnesses
on issues relating to damages are in the British Isles and
available to an action in Scotland.
/s/ Ronaup C. Scorr
Ronald C. Scott
[jurat omitted in printing]
Motion to Dismiss All
Exhibit “B”
I, Cuantes Kemp Davison, Queen’s Counsel (Scot-
land) depone as follows: I have been in regular practice
before the Supreme Courts of Scotland for twenty two
years. I graduated as Bachelor of Laws (with distinction)
from the University of Edinburgh in 1956, and in the same
year I was admitted to the Faculty of Advocates. I was
appointed Queen’s Counsel (Scotland) in 1969, and in
1977 I was elected Vice Dean of the Faculty of Advocates.
In the course of professional practice I have had extensive
experience in the handling of actions of damages in re-
spect of personal injuries and death. In particular I am
familiar with the Law of Scotland pertinent to the issues
raised by the Edinburgh firm of Shepherd & Wedderburn,
W. S. and Pennsylvariia attorney, Ronald C. Scott, Esquire.
My opinion has been sought regarding certain legal
aspects of claims arising out of an aircraft accident which
occurred in Scotland killing six Scottish citizens and resi-
dents including the pilot. The aircraft had been built ‘in
Pennsylvania, U. S. A., equipped with engines built in
Pennsylvania, U. S. A., and propellers built in Ohio,
U. S. A. The aircraft involved was being piloted by a
Scottish pilot who was in the employ of a Scottish aviation
service. The aircraft in question may have been owned
and maintained by an English air service. The survivors
of the decedents are presumed to be Scottish citizens and
residents.
In the above context, I have been asked the following
questions and make the following answers:
1. Question: What body of law would the Scottish
Courts apply for the purpose of assessing damages which
might flow from the losses occasioned by the accident,
Scottish, English, Pennsylvania or Ohio law?
Al2 Motion to Dismiss
Answer: In relation to both heads and quantum of
damages the law of Scotland would be applied. I refer
to Mitchell v. McCulloch 1976 S. L. T. 2, and authorities
cited therein.
2. Question: Under the law of Scotland, does a
cause of action exist on behalf of the estate of a decedent
or which may be brought by a personal representative of
a ee
Answer: No. No such cause of action or claim ex-
ists under Scottish law.
3. Question: Is there a statute of limitations upon
time within which claims may be brought by survivors
for damages occasioned by the death of a decedent and,
if so, what is that period?
Answer: Yes. Asa general rule the period of limita-
tion is three years from the date of death. I refer to sec-
tion 17(1)(b) of the Prescription and Limitation (Scot-
land) Act, 1973. Exceptions to the general rule are not in
point in the present case.
/s/ C. K. Davipson
Davidson
[jurat omitted in printing]
Motion for Judgment on Pleadings Al3
MOTION OF DEFENDANT PIPER AIRCRAFT
COMPANY FOR JUDGMENT ON THE PLEADINGS
OR FOR SUMMARY JUDGMENT
Filed May 15, 1978
[caption omitted in printing]
Defendant Piper Aircraft Company, by its under-
signed attorney and pursuant to Rules 12(c) and 56 of
the Federal Rules of Civil Procedure, hereby moves this
Court for Judgment of the Pleadings or, in the alternative,
for Summary Judgment, in this case on the following
grounds:
(A) The Plaintiff Gaynell Reyno lacks standing to
bring this action and is not qualified to act as the
personal representative of the Estates of William
Fehilly, Liam Stuart Fehilly, William James Mc-
Dougall Storm, David Vincent Moran and Peter Cun-
ningham Scott, in that she is not a relative of any of
the decedents or their heirs;
(B) The complaint in this matter which sounds,
inter alia, in strict liability in tort, fails to state a claim
upon which relief can be granted because the law of
Scotland does not recognize the theory of products
liability;
(C) The complaint in this matter sounds in wrong-
ful death, but there is no wrongful death action under
the laws of Scotland and the laws of Scotland do not
provide for an action based on the death of a decedent
as is attempted by Plaintiff herein.
(D) This action shov!d be dismissed on the ground
of forum non convienw because this action could have
and should have been brought in Scotland.
Al4 Motion for Judgment on Pleadings
(E) This action should be dismissed for failure to
join an indispensable party.
Respectfully submitted,
By /s/ Carnes J. McKELvey
Charles J. McKelvey
McNerney, Pace, VANDERLIN & HALL
Affidavit of McKelvey Al5
AFFIDAVIT OF CHARLES J. McKELVEY
Filed May 24, 1978
[caption omitted in printing]
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA wy
County or Lycominc ‘i
Cuantes J. McKetvey, first being sworn, deposes
and says that he is an attorney with the firm of McNerney,
Page, Vanderlin & Hall, located in Williamsport, Penn-
sylvania and represents Piper Aircraft Corporation in the
above matter; that he is familiar with the suit on behalf
of Gaynell Reyno and has undertaken an investigation
of the facts involved in this litigation, and that the facts
set forth below are true to the best of his information,
knowledge and belief:
1, The aircraft accident giving rise to this action oc-
curred in Tulla, Scotland.
2. The pilot of the aircraft was a citizen and resident
of Scotland and was an employee of, and acting within
the course of his employment for, a Scottish air-taxi com-
pany.
3. All persons aboard the aircraft at the time of the
accident were citizens and residents of Scotland. All of
the heirs and next of kin of said decedents are citizens and
residents of Scotland.
4. The aircraft involved in this litigation bore British
registration mark G-AYSF and was owned, operated, and
maintained by a Scottish air-taxi company which is not
subject to service of process in the United States.
Al6 Affidavit of McKelvey —
5. All maintenance on the aircraft for the several
years prior to the accident appears to have been done in
Scotland or England.
6. The wreckage of the aircraft involved in this liti-
gation is located in the British Isles and/or Scotland, and
is in the possession of the British Department of Trade
Investigators. It appears that the officials of the British
Department of Trade Investigators is unwilling to release
any of the remaining portions of the airplane to any of
the parties involved in this litigation.
7. The aircraft accident involved in this litigation was
investigated by a team of investigators employed by the
British and/or Scottish government. The report of their
investigation is located in Scotland and/or the British
Isles, and the officials investigating the accident have in-
dicated great reluctance to discuss their findings or facts
with any of the persons associated with this law suit.
8. All of the evidence with respect to the damages
suffered by the heirs and next of kin of decedents is lo-
cated in Scotland.
9. All witnesses to the accident and subsequent in-
vestigation are located in Scotland or England and would
be available to an action in Scotland.
10, The aircraft which was involved in this accident
was used for commertial purposes including the trans-
portation of passengers for hire in Scotland.
11. I have been in contact with a Scottish barrister
the law of Scotland in cases of this nature.
The law of Scotland does not recognize a cause of action
for, or the theory of, products liability, I am in the process
of obtaining an affidavit from this Scottish barrister with
respect to Scottish law, but administrative and transpor-
Affidavit of McKelvey Al7
tation difficulties have caused certain delays in my receipt
of this affidavit.
12. Under the laws of Scotland, the Plaintiff Gaynell
Reyno would not have standing to bring this action or be
as the personal representative of the real parties
and interests here, the heirs and next of kin of the de-
cedents involved in the aircraft accident.
13. The named Plaintiff in this case, Gaynell Reyno,
is a citizen and resident of California and is not related
to any of the heirs or next of kin of the decedents or to
the decedents themselves.
14. I have consulted with Piper Aircraft Corporation
and counsel for Hartzell Propeller, Inc., the only remain-
ing Defendants in this action, and have obtained their
agreement to accept service of process in an action brought
on behalf of the proper parties which is timely brought in
/s/ Cuantes J. McKetvey
Charles J. McKelvey
[jurat omitted in printing]
[certificate of service omitted in printing]
Al8 Affidavit of MacLeod
AFFIDAVIT OF DONALD IAN KERR MacLEOD
Filed May 25, 1978
[caption omitted in printing]
I, Donatp Ian Kerr MacLeop of 33 Lockharton Avenue,
Edinburgh, 14, Scotland, make oath and say as follows:
1. I am a Writer to the Signet and also Senior Litigation
Partner in the firm of Shepherd & Wedderburn,
Solicitors and Notaries practising at 16 Charlotte
Square, Edinburgh, 2.
2. I have been asked to advise upon the position under
Scots Law in relation to claims arising as a result of the
crash of a Piper Aircraft in the Moffat Hills at
Firthybrig Head on 26th July 1976.
3. Firstly, upon the question of products liability while
there is no absolute liability on the manufacturer of a
defective product liability can nonetheless be brought
home if negligence on the part of the manufacturer
can be established. Upon proof of negligence full
damages will follow.
4. In relation to claims for damages arising out of fatal
accidents Scots Law is now regulated by the Dam-
ages (Scotland) Act 1976 which came into force on
13th May 1976. As the accident giving rise to the
claims occurred in July 1976 the claims fall to be
dealt with in terms of the 1976 Act.
5. The basis rule under the Act is that the Executor of
the deceased may only sue in respect of patrimonial
losses suffered by the estate. In practice these would
be limited to the funeral account and (in some cases)
the cost of repairs to a motor vehicle. All other claims
on behalf of relatives or dependents of the deceased
must be brought by these parties themselves and must,
Affidavit of MacLeod A19
in addition, be brought in one action. There are pro-
visions in Section 5 of the 1976 Act designed to pre-
vent a multiplicity of actions.
. Claims by relatives or dependents fall into two classes.
These are:
(1) Damages for Loss of Support. These damages
are stated to be such as will compensate the
relative for any loss of support suffered by him
since the date of the deceased’s death or likely to
be suffered by him as a result of the death. The
relatives who can make such a claim for loss of
support are defined in Schedule 1 to the 1976
Act and comprise (A) the spouse (B) parent or
child of the deceased (C) any person accepted by
the deceased as a child of his family (D) as-
cendants and descendants (other than parents or
children) of the deceased (E) brothers, sisters,
uncles or aunts (or their issue) of the deceased
(F) a divorced spouse of the deceased. No other
person has any right to claim damages for loss of
support.
(2) Damages for Loss of Society. These damages are
general damages by way of compensation for the
loss of the society and guidance of the deceased.
Damages under this head can in terms of Section
10(2) of the 1976 Act only be claimed by persons
who were at the date of death (A) a spouse of
the deceased (B) a parent or child of the de-
ceased or (C) a person accepted by the deceased
as a child of his family.
No other claims for damages are competent.
. Iam informed and from a perusal of the papers verily
believe that a person who may or may not have ob-
A20 Affidavit of MacLeod
tained a Grant of Probate or Letters of Administration
is pursuing the claims of the relatives before the US
Courts. Such an action would not be competent in
Scots Law. As mentioned above the claims of
relatives must be brought on their own behalf and
action must be brought by or intimated to all persons
[jurat omitted in printing]
[certificate of service omitted in printing]
Transcript of Oral Argument A21
TRANSCRIPT OF ORAL ARGUMENT BEFORE THE
DISTRICT COURT
IN THE
UNITED STATES DISTRICT COURT
For THE Mimp.ie District or PENNSYLVANIA
No. 77-1159
GAYNELL REYNO, Personal Representative of WIL-
LIAM FEHILLY, LIAM STUART FEHILLY,
WILLIAM JAMES McDOUGALL STORM, DAVIS
VINCENT MORAN and PETER CUNNINGHAM
SCOTT
v.
PIPER AIRCRAFT COMPANY, a corporation, AVCO
LYCOMING ENGINE DIVISION, a Division of
Avco Corporation, HARTZELL PROPELLER, INC.,
a corporation
Transcript of Proceedings
Argument
Before: Hon. R. Dixon Herman, J.
Date: September 13, 1978
Place: Federal Building
Harrisburg, Pennsylvania
CounseL PRESENT:
MicHaEL D. Moorneap, Esquire
For—Plaintiffs
Ronatp C. Scorr, Esqume
For—Defendant Hartzell
Cartes J. McKetvey, Esoume
For—Defendant Piper
Virginia Loria
Official Reporter
A22 Transcript of Oral Argument
[2]
Tue Court: This is a case that was transferred to
me rather recently and I’m not as familiar with it as I
would like to be. And I would like to know whose mo-
tion is to be argued first here, is there more than one mo-
tion to be argued and who has the laboring oar?
Mr. Scott: I think I am first. I am Ronald Scott and
I represent Hartzell Propeller and ours was the first mo-
tion filed.
Shortly after us, Piper Aircraft filed a similar motion.
Tue Court: Are these the motions to dismiss?
Mr. Scott: Yes, sir.
Tue Court: Or motions for summary judgment?
Mr. Scorr: Ours is a motion to dismiss purely based
upon forum non conveniens.
Tue Count: Hartzell’s?
Mr. Scott: Hartzell’s, yes, sir. Piper’s is to dismiss or
summary judgment, essentially the same motion.
Tue Court: Then there was a later motion I believe
by plaintiffs.
Mr. Moorneap: No, your Honor, we are just re-
sponding to the motion made by defendants.
Tue Court: Very well, whoever wants to begin and
you stand wherever it is convenient for you to stand and
give me a little history of this case before you go into
your legal argument.
[3]
As I understand, this was an airplane accident some-
where near Europe or the North Sea or someplace like
that and a number of people lost their lives.
Transcript of Oral Argument A23
Mr. Scott: Yes, sir.
Tue Court: And it is the representative of these peo-
ple suing Piper Aircraft. And is the original action against
Piper as well as Hartzell.
Mr. Scorr: Yes, your Honor.
Tue Court: Hartzell was not brought in by Piper?
Mr. Scott: No, sir.
Tue Court: You may proceed.
Mr. Scott: If I may, I will start right at the top with
the background of the accident. In 1968 Piper Aircraft
Corporation built a PA 23 aircraft which is a twin-engine,
six place aircraft with Hartzell propellers on it.
Tue Court: What did they call that?
Mr. Scott: They called that the Aztec. It was sold
by Piper, I understand, to an Ohio dealer in 1968.
Some time thereafter—and for reasons that we will
mention a little bit later—we don’t know exactly when but
some time apparently in the early 1970’s—
Tue Court: It was sold new to this dealer?
Mr. Scott: Yes, sir. Some time in the early 1970's
this aircraft was sold abroad to a British aircraft operating
company. It was involved in an aircraft accident near —
[4]
Scotland, which is just south of Edinburgh.
Tue Court: Were these engines straight reciprocal
engines, no fuel injection or anything like that?
Mr. Scotr: They were Avco Lycoming six-cylinder
reciprocating engine, 250 horsepower engines. Avco Ly-
A24 Transcript of Oral Argument
coming, according to my file, has been dismissed from
this action by stipulation.
Mr. Moorneap: That's correct.
Mk. Scott: All that remains in the case as defendants
are Hartzell Propeller and Piper Aircraft Corporation.
In the spring of 1976, this aircraft was owned by a
Blackpool based, Blackpool, England air—apparently what
we would call an air taxi company or perhaps a fixed-base
operator.
They would lease this aircraft out. On the day of the
accident, a Scottish pilot in the employ of a Scottish air
taxi company had five passengers in an Aztec, 2 different
one, that flew from I think Dundee in Scotland north of
Edinburgh, down to Blackpool and they had a circuit to
follow. They had three or four stops to make over the
course of the day.
Their aircraft went down in Blackpool and they
changed to this aircraft that was later involved.
Tue Court: You would say this was a normal land-
ing?
Mr. Scott: It was a normal landing but it broke, they
couldn’t get it off. For some reason or another, we don’t
know
(5)
why, but just based upon the report of the British Depart-
ment of Trade, they changed aircraft. And the pilot from
the Scottish air carrier simply leased this aircraft from the
Blackpool company. I don’t know whether there was any
connection between them or not.
They flew that all day, came back to Blackpool, ex-
pecting to find their aircraft back in commission, it wasn’t.
So they went back into the airplane that they had been
flying all day.
Transcript of Oral Argument A25
They took off—do I understand that you have some
flying experience?
Tue Court: Yes.
Mr. Scorr: They filed IFR out of Blackpool and they
got about a third of the way along and found that their
radios, they weren't getting proper reception. They sus-
pected it was their own gear, so they cancelled IFR and
filed VFR. They were in radio contact as they went over
Se ee
up to ,
The last that was heard of this aircraft was that they
reported they were climbing from three thousand feet at
which they were below the overcast to thirty-five hundred
feet at which they were above the overcast. This was
about 50 minutes after they had taken off. And they were
near Tulla, which is just north of the border. They were
into Scottish territory.
(6)
The next thing that was found was this aircraft wreck-
age on the ground with indications on it: One, that it had
entered a spin and apparently a flat spin. It had come
down nearly vertically with a lot of rotation on it. There
were indications of no power and possibly no rotation on
z
;
:
i
1
3
engine.
The propeller locks which are devices that keep the
propeller from feathering when you shut the engine down
were found engaged on the left engine. This could have
happened at the time of impact or it could not have. But
nobody knows one way or the other. And that was about
it.
Except for one apparently very significant feature
that the investigators found on the left engine. The pro-
A26 Transcript of Oral Argument
peller was a constant speed propeller. It was driven,
controlled by a governor, which is run by engine oil. This
governor has a little pump in it, it has high pressure en-
gine oil going into it and it increases the pressure of the
oil and it controls the pitch of the propeller hydraulically.
Tue Court: The pilot controls it, doesn’t he?
Mr. Scorr: The pilot controls the governor, he has
an input into the governor itself but the governor sets the
pitch of the propeller so that the selected rpm will be
maintained,
There are four mounting bolts for this governor on the
(7)
engine. All four of those bolts were found backed off
approximately equally. There were marks on the gov-
ernor itself, on the metal of the governor made by the star
washers indicating that those nuts had at some time been
torqued down sufficiently to bite into the metal. And yet
all four of those nuts were found backed off approximately
equally.
There were tests run by the British Department of
Trade investigator. He found that the space that was be-
tween the governor and the engine block was sufficient to
allow the entire capacity of engine oil to escape in seven
minutes. Which means that somehow, some time during
that flight, apparently in the last few minutes, all four of
those nuts backed off immediately. Which indicates to
me a very strong probability that when the aircraft was
on the ground, a mechanic had started them off.
At any rate that—at least somebody that we can’t
reach in this Court started them off. They were all killed
in Scotland. They were all Scottish citizens. Their sur-
vivors are all Scottish citizens. Nevertheless, someone
whom I'm told is an employee of the plaintiffs’ law firm
Transcript of Oral Argument AQ7
was appointed a personal representative by a court in
California and a lawsuit was started in the state court in
California.
Tue Court: How did that happen, do you know?
Mr. Scorr: I don’t understand California, Judge, I
don’t know. It certainly is not in keeping with Scottish
law.
(8)
At any rate, this woman, Gaynell Reyno, was ap+
pointed by a California court as personel representative
of the estates.
Action was brought in the state court in California,
it was removed by Piper Aircraft Corporation, I believe, it
might possibly have been Hartzell—no, I'm sorry, it
wouldn't have been Hartzell, it might possibly have been
Avco Lycoming. But it was one of those two, removed
it to the federal court. At that point Hartzell filed a mo-
tion to dismiss or, in the alternative, a motion to transfer.
Tue Court: To where?
Mr. Scort: I think we requested Pennsylvania if we
weren't dismissed. The court found—and this is the first
legally significant fact—let me read this to you: The court
found that Hartzell was not in California.
And the phrasing of the order, it is attached to my
reply memorandum I believe it’s Exhibit A, page two.
The court having heard argument and having considered
the various points and authorities and other documents
filed in support of and in opposition to said motion orders
as follows: The motion of defendant Hartzell Propeller,
Inc. to dismiss for lack of personal jurisdiction is treated
by the court as a motion to quash service of said defend-
ant and is granted. |
A28 Transcript of Oral Argument
The court finds—and this is the significant part—
the court finds that the exercise of personal jurisdiction
over said defendant under the facts and circumstances of
this case
[9]
is not in accord with due process and is not authorized by
the California long-arm statute.
That was not appealed, that is page two of Exhibit A,
paragraph numbered one. That was not appealed. It is
the law of this case that Hartzell’s contacts with Cali-
fornia are insufficient to allow an action there to proceed
against it under the due process clause.
I believe in my reply brief, to which that is an ex-
hibit, you will see reference to several articles in the
Cornell Law Review and this morning we were by your
er ee ee
Tue Court: I don’t know how far back I have them.
Mr. Scorr: You do. There are 61 and 62 volumes.
But the one point that does come through very clearly
in all of those articles and in the decisions that are dis-
them is that ever since 1920 in the Deck case,
been
por soa due process requirements. There must be cer-
tain minimal contacts in choice of law to apply a state’s
law to a defendant, just as there must be certain minimum
Transcript of Oral Argument A29
[10]
It follows then, point number two, that California
law cannot constitutionally be applied to Hartzell Pro-
peller, Inc. under the law of this case which finds that we
are not there.
Therefore, since the only court where we have been
served and where we are present is the District Court for
the Middle District of Pennsylvania under Winesky versus
Eastern Airlines, the choice of law is the grouping of the
contacts. Pennsylvania rule, grouping of the contacts.
The reason I have gone into that particularly is be-
cause the choice of law is really the only point at which
it appears that plaintiffs are even attempting to refute the
points raised in my initial memorandum on my motion to
— The Pennsylvania rule is the grouping of the con-
yaar PO OI A Le IP
yet how many—decedents’ survivors who are all located
in Scotland. We have an accident in Scotland. We have
a carrier who was running this operation commercially in
ee tC
ter,
We have the maintaining people who are at least in
Great Britain, possibly in Scotland. All of them on the
other side of the ocean. We have an accident that in-
volves operation in English and Scottish air space.
The only thing that there is in Pennsylvania is that
Se ae
at
[11]
time they died was built some nine years earlier or eight
years earlier in Pennsylvania, And that the propeller—
that’s really not a Pennsylvania contact, we are an Ohio
corporation.
A30 Transcript of Oral Argument
So far as choice of law is concerned, at least as to
Hartzell—and it is important that a distinction be made
between Piper and Hartzell—with us, it seems perfectly
clear that Scottish law has got to apply. Which presents
practical problems, as you are well aware, sir.
In my original motion to dismiss, I have an affidavit
and there was another affidavit filed by Mr. McKelvey on
behalf of Piper, the affidavit of Donald McCloud. This
is my document number seven is my motion. And the
affidavit of Mr. Davidson who is—I think they call him
vice dean of the Edinburgh trial bar.
I sent certain questions to him and one of them, ques-
tion two under the law of Scotland, does a cause of action
exist on behalf of the estate of the decedent which may
be brought by a personal representative of the decedent
for damages arising from the death of a decedent.
And his answer, sir: No, no such cause of action or
claim exists under Scottish law. This is further carried in
Mr. McCloud’s affidavit in which he explains the damages,
such as they are, are recoverable by the survivors, the
survivors’ claims caused by the death of the decedents.
It follows then, sir, that Gaynell Reyno as to Hartzell
[12]
under Scottish law which does not recognize the right of
a personal representative to bring such an action, Gaynell
Reyno does not have any standing to bring a lawsuit
against Hartzell in Pennsylvania.
I want to talk a little bit more generally, sir, about the
general business of the forum non conveniens dismissal.
The leading case on that as I have cited in my brief was
Gulf Oil versus Gilbert, U. S. Supreme Court 1947. And
in that case the various criteria for dismissal under forum
non conveniens were discussed. I’m sure your Honor is
aware that the Third Circuit in the relatively recent case
Transcript of Oral Argument A3l
against Texaco has approved forum non conveniens, that
was the Jones Act case, in which actually there was a
heavier burden because of the precise wording of the
Jones Act upon the defendant to move the case out.
But it has been approved not only in other states and
other circuits but also in this circuit. The criteria are set
forth on page three of my brief and they are analyzed in
cases that come on later on. I’m not going to go through
all of them, sir. I do want to mention one case in par-
ticular, the Michell case, Michell versus General Motors,
because it is the Northern District of Ohio and we are an
Ohio corporation. And also because there is a distinction,
there’s a similarity that is I think sort of dramatic.
Michell involved a baby who was riding in an auto-
mobile in a GM infant loveseat. The automobile was in-
volved in an
[13]
accident, the child was thrown from the loveseat instead
of being retained in it. In the stated pleadings, it was
assumed that that was a defect on the part of GM’s design
and manufacture. And that design and manufacture had
been done in the United States.
Nevertheless, the accident had occurred to Canadian
citizens, the accident occurred in Canada. And the court
dismissed, saying: Go back to Canada, it’s not convenient
to try the case here. All of your witnesses to the accident
are there. Sure, the seat was designed in the United States
and it may be that you will have to come to the United
States to depose witnesses at General Motors as to how
this was designed and what the manufacturing technique
was. But nevertheless, the basic information, what the
damages were in the area where the accident happened,
how the accident happened, they are all in Canada. And
the people are Canadian.
A32 Transcript of Oral Argument
And the court—I quoted the court in two paragraphs
and if you will bear with me, I would like to read them.
I'm reading from page five of my memorandum. The
court while recognizing that the alleged fault of General
Motors occurred in the United States dismissed saying
quote this court sees no reason why it or any other U. S.
court should undertake the task of hearing and deciding
this lawsuit involving alleged injury to Canadian plain-
tiffs from a Canadian accident, the trial of which will in-
volve the application of Canadian law and
[14]
the presentation of Canadian witnesses, whose live tes-
timony cannot be guaranteed in this country. I think it
is a pretty good analogy to the situation we have here.
The court discussed the applicability of product lia-
bility law to the accident involving the Canadian citizens.
It says: If Ontario has a product liability law which is
stricter against alleged tortfeasors than Ohio or Michigan
law, plaintiffs should receive the benefit of that law. If,
however, Ontario does not protect its citizens in this area
as fully as Ohio or Michigan, the Ontario plaintiffs are
not entitled to assert the more liberal United States laws
as a basis for their suit. In such a case, Michigan and Ohio
state interests will be fully protected since their citizens
retain protection of these stringent laws and General Mo-
tors will have to conduct all of its design and manufactur-
ing operations in light of these laws in designing and
producing different infant seats for its different geographi-
cal markets. There being no countervailing government
interest at stake, this should be governed by the substan-
tive law of Ontario. Which I think bears very directly on
this cese.
You will see in my brief the analysis of the various
considerations that have developed out of the opinion in
Transcript of Oral Argument A33
Gilbert and I will go through them without going through
their history. You can get that in the brief.
First, is the relative ease of sources of proof.
[15]
Where can proof best be gotten. Of course, all of the
witnesses to the accident, all of the witnesses to damages,
all of the witnesses to maintenance of the aircraft—and
this was an eight or nine year old aircraft—they are over
there. We can’t reach them, our subpoena can’t go that
far. We haven't even an opportunity to go further than
the very limited investigation that the British Department
of Trade conducted.
They didn’t even interview, incidentally, sir, they
didn’t even interview any of the mechanics at the airports
where this aircraft stopped over the course of that day to
ask them: Did they do any work on it? I have personally
spoken with the investigator in charge of this. He told
me he got on the telephone and he spoke to the head man
of the operation from which the plane had flown and
said: Do you know whether any of your people or did
any of your people work on that airplane? And he said
I don’t know of any work being done on the airplane. And
he wrote it down: No work was done on the airplane.
That as your Honor is well aware is certainly no be-
ginnings of an adequate investigation of the cause of the
accident.
The plaintiffs, the survivors, all witnesses as to the
measure of damages, what is a Scottish life worth? How
do we get the testimony of that here. It is so much easier
to get it over there.
All witnesses regarding the training of the pilot and
[16]
the supervision given the pilot. This pilot, sir, had been
a licensed commercial pilot for three months when this
A344 Transcript of Oral Argument
accident happened. He had a total of 100 hours in this
type aircraft, according to his log book.
Tue Court: He must have had an instrument rating.
Mr. Scorr: He had an instrument rating and it was
three months old. He had just finished flight school. So
far as we have been able to determine—and that’s lim-
ited—we have no indication of any recurrent training
having been required by the company for which he was
working. Despite the fact that this man was going out
under instrument conditions in an aircraft in which he
should have been able to handle ordinary bad weather
and ordinary emergencies.
His log book, I am told, contains no indication of his
ever having had practice in coping with emergencies from
the time he left flight school until the time this accident
happened.
Witnesses as to that are not in the United States, they
are in Scotland. All of those witnesses would be subject
to compulsory process in the Scottish court. Anybody
from Pennsylvania or from Ohio who would be deposed,
their testimony would have to be taken by deposition
anyway.
Lock Haven, where Piper Aircraft Corporation is, is
far enough away that people are not simply going to be
commuting, there are going to be depositions to record
testimony taken.
[17]
Whether the plaintiffs’ attorney has to come a one-
day flight from Scotland to Pennsylvania or in a one-day
flight from California to Pennsylvania really doesn’t make
any difference. Same thing with Piqua, Ohio, central
Ohio. It’s as hard to get to from California as it is from
Scotland.
Transcript of Oral Argument A35
The second criterion is the availability of compulsory
process to require the attendance of witnesses and that’s
covered by the location of the witnesses. We can’t sub-
poena people over in Scotland or in England.
Congestion of the courts. This Court doesn’t need
any more business. That's one of the criteria that the
Supreme Court talked about. They said administrative
difficulties follow courts when they take on litigation in
congested centers instead of its being handled at its origin.
This can very well be handled over in Scotland.
Jury duty. Judge, this is a trial that’s got to take a
month. Should we impose upon citizens of the Middle
District of Pennsylvania a month out of their lives to
listen to a case and decide a case that involves no Penn-
sylvania interest, that is solely for the benefit of foreign
citizens. It’s an unreasonable burden.
Finally—or not finally—but one of the last points
that the Supreme Court said in the Gilbert case, that was
a diversity case, that was transferred from New York to
I think West Virginia where there would be a change
in law.
[18]
They said: There’s an appropriateness too in having the
trial of a diversity case in a forum that is at home with the
state law that must govern the case. Rather than having
a court in some other forum untangle problems in con-
flict of laws and in laws foreign to itself.
Judge, at least as to Hartzell Propeller, Inc., Scottish
law is going to have to be applied to this case and we are
going to have to learn Scottish law if the case is to be
tried here. I enjoy learning the law but a whole new
body of law is a bit much. And I think it is a very com-
pelling reason to send this back home.
The need to implead further parties who cannot be
reached in the sending forum, this I propose is the sending
A36 Transcript of Oral Argument
forum. The people who trained this pilot. The pilot's
employer the carrying company, the people who main-
tained this aircraft. All of them should be parties in this
lawsuit and they cannot be reached in the United States.
And it is grossly unjust not to have them parties in this
litigation.
If the argument is made that we could if there is a
verdict handed down against us, go back to England or
Scotland and try to get ceniaibeition. the measure of dam-
ages would be different handed down by an English or
Scottish court on contribution to what would be en-
countered here. And it seems to me fairness would in-
dicate that everything be handled under the same rules.
[19]
Finally, the interest of a foreign nation in the events
leading to the accident. And certainly, this is a com-
mercial air flight. Great Britain has a lot of interest in
the disposition of a case involving an air crash in its ter-
ritory which is being operated, the aircraft is being op-
erated, being maintained, the pilot was trained—allegedly
—in its country. They have a lot of interest in that.
Of all of these points, none are refuted by the plain-
tiffs. All they say in their answer—first of all, they lump
Piper and Hartzell together, we are defendants. We are
not, I’m Hartzell, he’s Piper. He has an entirely different
motion. And he has different bases. I'm here the first
time, he was out in California. My motion they say some-
how California law should apply, California choice of law
would apply to Pennsylvania rules and therefore Penn-
— damages and Pennsylvania law would be ap-
That doesn’t apply as we saw right in the beginning.
Pennsylvania law mandated by California choice of law
rule cannot apply here because of the constitutional limita-
tions, because we were not in California.
Transcript of Oral Argument A37
The answer filed by the plaintiffs to my reply memo-
randum says Van Dusen versus Barrack, Van Dusen versus
Barrack, Van Dusen versus Barrack. As you know gen-
erally the rule in Van Dusen versus Barrack is where there
is a transfer from one district to another, the law follows
the case. That
[20]
applies to the Van Dusen versus Barrack situation where
all parties were present. I have not seen a single case
in which the court applied the law of the transferor state
and was affirmed on that when it was applied against a
party who was not a party in the transferor state.
There are definite limitations—and you will see that
in my reply brief. In the Van Dusen opinion itself, definite
limitations to the power or to the rule that—I will give you
a page—I'm sorry, to my answer to the reply brief. It
is the last document. My motion to strike or in the al-
ternative answer to plaintiffs’ response to defendant Piper
and Hartzell’s reply memorandum. My motion to strike,
you know the reason for that. The document that was
filed simply has no bases in our rules.
But if you accept the document, if you look on page
two, the thrust of Van Dusen versus Barrack was that the
transfer of a case shall not work a change in the law as
to any party. No party may benefit or be hurt by a trans-
fer. However, if as plaintiffs argue the California law,
choice of law, were applied by this Court against Hartzell
when it has already been established that California could
not apply it, the transfer would in fact change the law as
to Hartzell. I have it written right in there and I don’t
need to bother you any more.
Tue Court: All right, I understand.
Before I take the reply to that, I would like to hear
A38 Transcript of Oral Argument
(21)
from Piper and then have the plaintiffs’ argument at one
time contra to both motions.
Mr. McKetvey: Your Honor, my names is Charles
McKelvey, I represent Piper.
Tue Court: And you are from Williamsport.
Mr. McKEtvey: Yes, sir.
Essentially Piper takes the position that the case
should be dismissed on the basis of forum non conveniens,
on the basis that Gaynell Reyno has no standing to sue
and that the law of Scotland requires that the plaintiff
prove negligence in a case of this type and that the law
of Scotland should be applied to Piper in this case.
Tue Court: How does the case against you differ
from that against Hartzell except for the fact that you were
in the case in California and Hartzell was not. Is that
the only distinction?
Mr. McKetvey: That’s the only distinction, your
Honor, the airplane was built in 1968 in Lock Haven, it’s
an Aztec airplane.
Tue Court: The propeller was built in Ohio?
Mr. McKetvey: That’s right, and we installed the
Hartzell propeller in 1968 and sold the airplane and know
nothing more about it since that time, really.
Tue Court: What happened in California as far as
you were concerned?
[22]
Mr. McKetvey: The case was brought by Gaynell
Reyno against Hartzell, Piper and Avco. There were many
pleadings back and forth. And as far as we were con-
Transcript of Oral Argument A39
cerned after Avco was let out, at some point Piper joined
in a motion by Hartzell—Hartzell’s motion was dismissed
because of lack of jurisdiction and in the alternative trans-
ferred to the Middle District. Piper joined in the motion
to transfer to the Middle District. Hartzell’s case went
off on jurisdiction or, was dismissed in California because
of lack of service.
Tue Court: Why was Piper not, didn’t they get
service in California on Piper?
Mr. McKetvey: They did, and Piper never raised
that issue.
Tue Court: You have enough activity in California?
Mr. McKetvey: Apparently.
Tue Court: I would have thought Hartzell would too
but apparently not.
Mr. McKetvey: Apparently not, at least it wasn’t
proved. Now we are back here and I am convinced that
Mr. Scott is correct that as against Hartzell the law of
Scotland must be applied.
Our opponents will claim that as against Piper,
products liability law of Pennsylvania must be applied.
So this Court will be asked to apply negligence against
Piper—or negligence against Hartzell—product liability
against Piper.
[23]
Tue Courr: You mean if Scottish law has to be ap-
plied against Hartzell, there’s no product liability law
there, is that what you were saying?
Mr. McKetvey: That's correct, your Honor. And
we have an affidavit from the barrister in Edinburgh,
Donald McCloud, it’s in the file and it is uncontradicted.
A40 Transcript of Oral Argument
And Mr. McCloud states that—point two: I have been
asked to advise on the position under Scottish law in rela-
tion to claims arising as the result of the crash of the Piper
aircraft in Moffat Hills of Firthybrig on July 26, 1976.
Firstly, upon the question of product liability, while there
is no absolute liability on the manufacture of a defective
product, liability can be brought home if negligence on
the part of the manufacturer can be established. So the
burden vis-a-vis Hartzell is to prove negligence.
Plaintiffs claim that the burden against Piper is
product liability. Two standards of law or two series of
liability for the same airplane.
Tue Court: Both defense motions are in the nature
of a motion to dismiss for summary judgment?
Mr. McKetvey: Yes, your Honor.
Tue Court: There’s no motion as there was in Cali-
fornia to bring it here, there’s no—I thought I saw some-
thing here of a motion to transfer still open, was it or not?
Mr. McKEtvey: We will concede, your Honor, Piper
and
[24]
Hartzell, that is if this Court dismisses it, we will accept
service in Scotland and will defend the case in Scotland.
The statute of limitations in Scotland does not expire
until July of 1979.
Mr. Scott: We have agreed to that, sir.
Mr. McKetvey: The cases relied on—and I won't
take up much more of your time—
Tue Court: I haven't read your briefs, obviously.
This was Judge Muir's case and I had to recuse myself in
a couple of other cases in which I was closely connected
Transcript of Oral Argument A4l
with officers of one of the parties and in return this was
assigned to me from him. And I have not gotten into it.
This is a "77 case so I will have to read the briefs and get
onto it as soon as I can.
Mr. McKetvey: One final paragraph: The cases
upon which plaintiffs rely are California cases, Reich
versus Purcell, Hurtado and Harrah’s Club and are ap-
pended to the memorandum of law submitted by plain-
tiffs’ counsel.
Hurtado involved a Mexican citizen but the automo-
bile accident occurred in Sacramento County, California.
Harrah’s Club is a dram shop case. The Harrah’s Club is
a gambling casino in Nevada advertised in California for
Californians to come to Nevada and patronize Harrah’s
club. The defendants did—not the defendants—but two
Californians did and became obviously intoxicated. Har-
rah’s continued to serve them liquor
[25]
and these people got back on the road and got back to
California and were involved in a serious accident. Plain-
tiffs brought suit against Harrah’s Club claiming that Cali-
fornia should apply its dram shop act because the accident
happened on the California highway. And the court said
yes, apply California law in that case rather than Nevada
which forbade it.
The third case, Reich versus Purcell, involved an ac-
cident which occurred in Missouri. The defendant lived
in California, the plaintiff lived in Ohio. California didn’t
apply California law in that case, it applied the law of
Ohio.
In this situation here we feel that California would
apply the law of Scotland. The interests are in Scotland,
the people live in Scotland, the decedents, the estates are
being administered in Scotland. The accident happened
A42 Transcript of Oral Argument
there, the witnesses are there, the necessary parties to this
lawsuit are there.
We can’t bring in—Mr. Scott went over this and I
won't go over it all again—but we have Scotch airspace,
the regulation of commercial charter aircraft, all of these
are Scotch interests. The only thing against Piper, the
airplane was built here ten years ago. And if this air-
plane were manufactured in Scotland, the plaintiffs would
have to prove negligence to recover against the aircraft
manufacturer.
Pennsylvania’s interest here in this day and agé when
our jobs are being lost because of imports from Japan and
[26]
Germany and overseas nations, Pennsylvania's interest
here should be to prevent somebody from a country which
requires proof of negligence to recover from coming here
where there’s an easier standard of proof because in the
long run it makes it more expensive for the person here in
Pennsylvania to do business. And eventually those jobs
are lost overseas. And I think it is a compelling interest of
Pennsylvania in this case where the interests, with the
peculiar facts of this case to apply the laws of Scotland
as far as liability is concerned.
With that I will close, your Honor.
Tue Court: All right, now let me hear from the
plaintiffs.
Mr. Moorneap: Thank you, your Honor end |
would like to thank you for admitting me to appear in this
case.
Your Honor, this is a forum non conveniens motion
basically. They are seeking to dismiss this case, move it to
Scotland based on the convenience of witnesses in the
ends of justice.
Transcript of Oral Argument A43
Let me just stress two points before I get into it.
What is the legal basis for them to succeed in such a mo-
tion, what do they have to do? They have to show that
the balance is strongly in their favor, not equal, not a little
bit more than equal, but strongly in their favor.
I’m going to show—I hope I show, I hope I have al-
ready shown in my papers—but I hope to just cover
them
[27]
briefly in oral argument that each and every element that
they have raised that say kick this case out of their chosen
forum—which is something I want to go into also. They
chose this forum, we didn’t. They chose Pennsylvania.
But they say kick this case out of our chosen forum for
the second—or if you want to say for the third time let's
transfer this case to Scotland. And each and every ele-
ment that they raise to transfer this case, the equities, I
would say, are overwhelmingly in favor of keeping it here.
i ama ent te ala a
it .
And again, what is the standard? It must be strongly
in favor of the defendant. Or to put it in the words of a
case that the defendants understandably have omitted to
cite, this is the case of Top Form Mills versus Sociedad
Nationale wherein the court states: There has been no
allegation that Top Form has chosen to bring suit in the
Southern District of New York in order to vex, harass or
oppress the defendant and this court finds that no such
motive exists. As has been noted, we should respect
plaintiff's choice of forum as long as no harassment is in-
tended, especially when the alternative forum is a foreign
one.
It is thus evident that Avandero has not met its bur-
den of showing positive evidence of unusually extreme
A44 Transcript of Oral Argument
circumstances that material injustice is manifest and its
motion must be denied.
[28]
I'm saying they haven't met that standard and I
would go in now and discuss it. First off, as to the state-
ment of facts, I am not going to go into a detailed state-
ment of facts, Mr. Scott covered it very well. Save and
except one important procedural point that they under-
standably glossed over, both defendants.
And that is that they requested this case be trans-
ferred from California to Pennsylvania. They themselves
requested the transfer. And in that request, let me just
read to the Court some of the things they said requesting
it to be sent here. Piper made this statement: The pro-
priety of transferring the within action to Pennsylvania
for the convenience of witnesses appears to overwhelm
other factors in view of the apparent theories of liability
as against the defendants. The material charging allega-
tions of plaintiffs’ complaint concern defective products
and negligent manufacture, assembly and design. As at-
tached reader affidavit indicates, the subject aircraft was
manufactured in Pennsylvania and sold to a corporation
in Ohio. Necessarily, it would seem that all material wit-
pag the liability issues reside either in Pennsylvania
or Ohio.
Convenience of the witnesses is furthered by consid-
ering the fact that discovery will necessarily have to take
place largely within the state of Pennsylvania.
That's not us talking, your Honor, that is Piper talk-
ing, that is Piper talking in the original transfer motion.
[29]
They continue on and cite a case again supporting their
position to move it to this Court.
Transcript of Oral Argument A45
That case is Quandt versus Beech Aircraft Corpora-
tion, 317 Fed. Supp. 1009. The transferring court held
that action by foreign citizens arising from an air crash in
a foreign state favored on balance the transfer of the action
to the place where the defendant manufacturer main-
tained its principal office and manufacturing facility.
Where is that? That’s here in Pennsylvania. Now
Hartzell in the same proceeding—
Tue Court: Now you say that the motions here and
what you are arguing are the motions of the two de-
fendants for a change of jurisdiction. Are you saying that’s
basically what they are asking for, but in that motion they
asked for the case to be dismissed or judgment on the
pleadings, that’s what I understood.
Mr. Moornneap: They asked I assume for it to be
dismissed in favor of bringing it in Scotland.
Tue Court: All right, I haven’t checked the motions
yet.
Mr. Moorneap: And they brought the same motion in
California, sending it here. And that’s my point. I will
read further but one of our primary contentions is that they
should be estopped from basically transferring this case
again. It was removed from state court, federal court in
California. It
[30]
was removed at their request pursuant to 1404a from the
United States District Court in the Southern District of
California to this Court. And they are seeking again,
okay, we have done it twice, let’s do it again and send it
over to Scotland.
I hesitate to think where we will go if we get to
Scotland.
A46 Transcript of Oral Argument
Let me just read to you some statements made by the
defendant Hartzell in its original motion to transfer to
this Court. Hartzell’s original motion states: To transfer
said action to the United States District Court of Pennsyl-
vania for the convenience of all parties and all witnesses
in the interest of justice.
Tue Court: How did this case get started in Califor-
nia, as a matter of interest. What contacts are there of
anybody in California?
Mr. Moorneap: We sincerely felt, your Honor, that
all defendants, Avco Lycoming, Hartzell and Piper had
sufficient contacts—more than sufficient contacts—to jus-
tify a suit in California. Unfortunately, the court in
California decided as to Hartzell which was another point
I want to state that they were not doing sufficient con-
tacts there that the case—the court in California did not
dismiss the action which is a fundamental flaw in their
argument that California choice of law does not apply.
The action, if you will read the order, was not
[31]
dismissed. The court declines to dismiss the action as to
said defendant Hartzell—this is from this order, page two.
In view of its order hereinafter set forth for transferring
the action to the Middle District of Pennsylvania.
The action was not dismissed in California—which is
very important. I will read into why California choice of
rule—choice of law rules pursuant to Van Dusen must
apply here.
At any rate, I won't belabor this. I included state-
ments of both defendants ad nauseam. I included state-
ments of both defendants ad nauseam in my reply paper
saying why they wanted this case moved here. They went
on and on about the ends of justice would be served if it
Transcript of Oral Argument A47
is here. The convenience of witnesses would be served if
it is here. They all said that, we didn’t. This was in
California.
Let me go on and address the instant motion. We
are here at their request and now they want to send us
over to Scotland. Let me just address the point that they
have raised in their motions.
Again, the balance of factors has to be strongly in
favor of the transfer. And I would just invite you to keep
a score card, to keep a tabulation going on the elements
as dictated in Gulf Oil case as to what is necessary for the
defendants to satisfy their very heavy burden to transfer
a case, particularly to a foreign jurisdiction which this
would involve.
[32]
The convenience of witnesses. Both defendants have
harped away that the majority of the witnesses are over
in Scotland. Number one, this argument totally ignores
their original statements where they say the majority of
the witnesses required on liability issues are in Pennsyl-
vania and of course Ohio, namely the people who planned
the various products that we allege are defective, the
people who designed those products, the people who
manufactured those products, the people who installed
those products originally. The list as far as in person wit-
nesses is huge.
Now you take a look at the documentary evidence
that is going to have to be produced. Where is it going
to come from as to the defects we allege existed in this
aircraft and proximately caused the crash. It is going to
come from Pennsylvania and Ohio, not from Scotland.
Let me go on. They continue to harp also on the
fact that all the witnesses on damages are in Scotland and
that therefore it is unfair. That omits a very basic point.
A48 Transcript of Oral Argument
The witnesses that are on damages in this case are the
plainiiffs and they have chosen this forum over Scotland
to bring their action. So they are more than willing, by
bringing the action here, to come here, so they cannot
complain. And in fact, it is not true that it would be in-
convenient for the plaintiffs who are the only witnesses
on damages to come to Pennsylvania. It is simply not
the facts. They are willing to come here because they
have
[33]
brought the action here or had it transferred here without
objection.
So you have the primary witnesses on liability. And
you have the primary witnesses on damages. Where are
they? They are in Pennsylvania or more than willing to
come to Pennsylvania.
Let’s backtrack a little bit and take a look at the
thrust of what the plaintiffs are contending here. The
plaintiffs are contending that there was a defect existing
in this aircraft. The case has not proceeded far enough
to determine the exact nature, extent or all the elements
of the defects that we contend caused this crash. But the
point is that where was the defect designed? Where was
the defect installed? Where did all the elements consti-
tuting the factor that caused the damages in this case take
place? Right here in Pennsylvania or in Ohio.
So as you-can see, the balance on witnesses, at least
the first element if at anything is even, I submit that it
is clearly in favor of the plaintiffs, but at least it’s even.
It is not strongly in favor of the defendants, which is the
burden they have to hold to transfer this case to Scotland.
Next, they make a big point that it is inconvenient
for this action to be tried here because foreign law will
have to be applied and that is the law of Scotland. The
Transcript of Oral Argument A49
law of Scotland does not govern any issue in this case.
Whether you take the conflicts law of California which we
submit clearly
[34]
must apply under Van Dusen versus Barrack or even con-
cede, let’s take the law of Pennsylvania or let’s take the
law of Ohio. The conflicts law that is going to apply is
basically governmental interests. It may have significant
contacts but as the court in Pennsylvania in Griffin versus
United Airlines says even under significant contacts we
still must look to government interests.
So what states are interested in applying their law to
that action? If you read the brief that we filed and the
analysis under governmental interests, Scotland has no
interest in applying its law. Number one, its damage
provisions under its law are limited. Well, would it have
an interest in applying its limited damages provision to its
own citizens? No.
Scotland obviously wants its citizens to obtain the
greatest recovery possible. How will that happen?
Through the law of Pennsylvania as opposed to that of
Scotland. Now we look at the other side. We have
covered damages. What about liability? What is the
law of liability in Scotland as it applies to product liabil-
ity? There’s none.
As the defendants have already said—and I concede
—the only law involving products cases in Scotland is
negligence. There is no strict product liability. So the
interest in a state in enacting strict product liability is to
protect its own industries—or excuse me—the interest in
a state not in
[35]
enacting strict product liability laws is to protect its in-
dustries from this rather onerous burden. But are the
A50 Transcript of Oral Argument
industries which we allege caused this crash in Scotland?
7 Sgr Sanaa They are here in Pennsylvania and
Ohio.
So does Scotland have any interest in applying either
its law of damages or its law of liability? It does not.
Let me go on because I think this will link in a second
point. Both counsel have commented that this jurisdic-
tion has no interest whatsoever in this action. That's
really absurd as far as I understand it any way. Where
was the defect created in this aircraft? It was created
right here in Pennsylvania. The defect in design and
manufacture of this aircraft as alleged by plaintiffs was
created right here. It happened right here. True, the
propeller was manufactured in Ohio but it came to Penn-
sylvania and was put in the aircraft in Pennsylvania.
So as opposed to Scottish law, Pennsylvania law, the
defect occurred here and so therefore this community has
a very strong interest in preventing such defects from oc-
curring in its industries which manufacture these products.
A final point on that issue, this community has no
interest. I submit this community as a whole, Pennsyl-
vania, has a strong interest aside from making its manu-
facturers not produce defective products. And that is let's
say we are successful in this lawsuit, what is going to
happen? Industries in Ohio and Pennsylvania hopefully
are going to be assessed a rather
[36]
damage award. But let’s say we are unsuccessful, the
same thing. Industries in Pennsylvania and Ohio are not
going to be assessed a very large damage award. The
arguments for these people who live in these communities
right near these manufacturing plants is obvious. If their
manufacturing plants are continually hit with large dam-
age awards, they may go out of business. If they are not
Transcript of Oral Argument A51
hit with large damage awards, their jobs will remain se-
cure. That is just a digression to show that the com-
munity as a whole that we are presented with here in and
around this Court is definitely interested in this litigation.
But the defendants have also hit strongly on the point
that they cannot join parties that will be necessary to this
action in Pennsylvania. And they say the harm that will
result from this action is that they will be forced to bring
a second action in Scotland for indemnity.
Again, we are looking at the balance here. First off,
what if this action is tried in Scotland, what are the plain-
tiffs going to have to do if they win? They are going to
have to come back to the courts of the United States and
ask those courts to: One, recognize the judgment and
then get a judgment on that judgment in a federal court
that can be enforced.
So what are we going to do if it is kicked back and
forth for the third and fourth times from Scotland. The
point is that we are going to have to bring a lawsuit. So
the equities
[37]
on that point again are even, they are not strongly in favor
of the defendants. Just as I said before, the interests in
this community in hearing this lawsuit are not strongly in
favor of the defendants.
Secondly, I would like to just read a portion of the
investigative report that was referred to by counsel for
the defendant.
Mr. Scotr: Your Honor, if I might object, there is
no final investigative report. There is only a provisional
report that is under review at this point. Many of the
conclusions that were reached by the investigators verge
on the inane. And only a few facts which were clear in
A52 Transcript of Oral Argument
their investigation were cited by me. The conclusions
I believe should not be brought out at this point.
Tue Court: You may go ahead.
Mr. Moorueap: It is understandable why counsel
for the defendant would say this in light of this conclusion
that I am going to read to you from the accident investi-
gation report conducted by the British authorities. At
this time I cannot see any technical evidence likely to be
sufficient to sustain a damages claim against the owners or
operators of the aircraft or their staff.
Now, in their papers and in their oral argument, the
defendants say we must bring in these owners, we must
bring in the maintainers, we must bring in their staff and
we must bring
[38]
in the investigators, we want to bring them into this law-
suit. The point is, I doubt very much if they are going
to really want to bring them in because of this opinion.
Let me read on to just another portion of their con-
clusion: There is, however, one aspect of this tragic hap-
pening that I feel warrants detailed scrutiny is the ap-
parent major discrepancy between the single engine
performance of this type of aircraft and its stalling char-
acteristics in various configurations either stated or implied
in the then current flight manual. This manual having
the approval of both the United States of America, federal
aviation authorities of its country of origin and the British
t civil aviation authority acceptance and ap-
proval for mandatory use within the British registered
aircraft.
He goes on to criticize that particular point in this
aircraft. What I am saying, your Honor, is that all of
these witnesses they contend should be called here and
Transcript of Oral Argument A53
create the inconvenience, I believe in reality will never
be called here to trial. Possibly to depositions which can
be as easily taken over there as here.
The defendants also bring in the point under Gulf Oil
—they didn’t in oral argument but they did in writing so
I will address it—the site of the crash is important here.
I’m sure counsel for defense and your Honor has heard
many more aviation cases than I have tried. But I don't
believe that the
[39]
view of the premises is at all relevant here. We have
alleged a defect in the aircraft, the terrain, the amount of
ground cover or whatever that existed at the time of this
crash is irrelevant to the issues presented in this case.
So your Honor, I will come back in closing now to
what I believe are numerous red herrings that have been
thrown into this case. As the defendants recognized in
their original motion to transfer this case at their own
choosing from California to this Court, this is a products
liability action which alleges defects in design and manu-
facture of an aircraft which was built here and in Ohio.
The nature of the case is concerned solely with the
existence of these defects. And under product liability
law did these defects exist at the time of manufacture and
did these defects proximately cause the crash. The over-
whelming number of witnesses to establish a defect exist
in Pennsylvania and Ohio. They do not exist in Scotland.
The overwhelming and as a matter of fact all of the
witnesses as to damages are willing to come to Pennsyl-
vania. So as to witnesses, they have not handled their
burden of making it strongly in favor of a transfer to
Scotland.
As to a view of the scene, they have not substantiated
their burden. As to a joinder of parties, they have not
A54 Transcript of Oral Argument
substantiated their burden. As to foreign law being ap-
plied, it is clear that either the law of California choice
of law rules
[40]
apply or Pennsylvania or Ohio. And under all those
choice of law rules, Pennsylvania law is going to apply on
the basis of governmental interest.
This case definitely has a direct relationship to this
community and should be tried here because the manu-
facturers are either here or in very close proximity.
Finally, your Honor, I cannot minimize the point—
and I hope you pay particular attention to this statement
that I have I think in our papers made by both the de-
fendant Hartzell and Piper saying that fine, Pennsylvania
is fine with us. For the convenience of witnesses it’s bet-
ter here, for the ends of justice it’s better here. And then
we get it moved here and what happens? No, the con-
venience of witnesses, it’s better in Scotland. The ends of
justice is better in Scotland.
I submit, your Honor, that they should at least be
estopped to have this case tried in a forum that they them-
selves chose. And in conclusion, your Honor, I submit
that all of the factual, legal and practical requirements for
a just and valid cause of action can be maintained in Penn-
sylvania and through these moving papers have been
shown to be able to be maintained in Pennsylvania.
Furthermore and most importantly, the defendants
have simply not substantiated their burden to transfer this
case to a foreign jurisdiction in Scotland. They make the
contention that Pennsylvania was not your original chosen
‘forum and therefore
[41]
you cannot rely on all the cases that say that extreme em-
phasis should be applied to a plaintiffs chosen forum. I
Transcript of Oral Argument A55
submit, your Honor, that the United States of America was
the plaintiffs’ chosen forum and wherever, even the juris-
diction that they themselves chose, we much prefer this
jurisdiction over Scotland.
Thank you very much.
Mr. Scorr: Your Honor, I would like to reintroduce
myself. I’m Ronald Scott, I represent Hartzell Propeller,
Inc. I am not “they”. And this “they” did not choose
Pennsylvania. This “they” had an alternative motion to
get out of California, if somehow we should be found
there. That motion wasn’t reached. It never took effect
because we were found not to be there. And that’s very
important.
We didn’t choose Pennsylvania. We are not here
because we selected Pennsylvania as a forum. We didn't.
We weren't even there. We can't be estopped. Your
Honor recognizes that argument.
The majority of the witnesses. If I were willing to
be limited in trial of this case to the witnesses chosen by
the plaintiff which plaintiff wished to bring to the United
States, plaintiffs’ statements would be absolutely correct
and I would agree with that. But I’m not. I think I’m
entitled to present witnesses other than those that plaintiff
chooses for me on issues of damages.
And where am I going to get them and how am I
going to
[42]
get them over here and how am I going to compel their
testimony? How am I going to get the employers of the
plaintiffs’ decedents to testify against the widow or the
orphan or whatever. How am I going to compel them to
cross the ocean to tell a different story than plaintiff wants
heard? How can I do that? I can’t.
A56 Transcript of Oral Argument
How can I compel the testimony of the mechanic,
whereever he is, bless his heart, who loosened up those
four nuts and caused this accident. How can I do that?
Simply because the British Department of Trade was so
slipshod in its investigation as to not go to the accident
source, the airport from which the aircraft took off and
interview the people who did the work, doesn’t mean that
we should be forbidden to do so or forbidden to join them
as parties if after a proper investigation we can find who
they are.
They are the most obvious defendants. The coinci-
dence of having all four mounting nuts come loose simul-
taneously in the same amount, it was better than 200 hours
after the log book—the last log book entry of work on that
propeller. The coincidence of those four coming loose
simultaneously is incredible. A computer would blow a
fuse trying to compute it. The only conceivable way that
could have happened was through a mechanic’s error.
The plaintiff says he’s going to have to bring a law-
suit in the United States if he wins in Scotland. Not if
he wins against the proper defendant. The proper de-
fendant is
[43]
already over there. And if we appear and if we are found
guilty over in Scotland of having been negliger.t, if we
are responsible, I can’t see any difference between trans-
ferring a judgment from there to here than transferring a
judgment from Pennsylvania to Ohio. Still it’s going to
be transferred if he’s going to have to enforce it against
the corporation directly.
He has tried too many cases to know that to be so
and your Honor has too.
Scotland he says has no interest—I'll paraphrase him
—in even handed justice for its citizens. And I think
Transcript of Oral Argument A57
that’s crazy. Scotland has a great deal of interest as does
Pennsylvania in seeing that all of its citizens get the same
justice, that no one is preferred because of a fluke. And
a fluke is what it would be if this were brought in the
United States with everything having happened over in
Scotland. Witnesses on liability. I found the argument
incredible.
Of course, no matter where the action is brought,
depositions in Piqua, Ohio, and in Lock Haven, Penn-
sylvania, will be taken. That's the mill running in the
product liability litigation. But that’s by no means all.
He makes the assumption that the cause of this accident
was the cause that the investigators with the assistance
of someone over there on behalf of the plaintiff came up
with is in fact the cause. It isn’t.
[44]
The cause is quite different. I myself ran a flight test
on a similar aircraft. I don’t represent Piper. At some
time later on I might be punching it out on the other side
from Piper. But I ran a flight test on PA 23 250 and I
certainly didn’t find the results that the Board of Trade in-
vestigators found. I found it to fly up to its specifications.
I think quite the opposite, everything points to this case
being out of Pennsylvania, out of the United States, in
Scotland. That's the only place where the plaintiffs could
get the even handed treatment that they are entitled to as
Scottish citizens rather than preferential treatment that
plaintiffs’ attorneys would be trying to get.
Thank you.
Tue Court: Thank you. I will take it under advise-
ment. Adjourn Court.
(Whereupon the hearing was concluded. )
A58 Affidavit of Cathcart
AFFIDAVIT OF DANIEL C. CATHCART IN OPPOSI-
TION TO THE SUPPLEMENTAL BRIEF IN
SUPPORT OF MOTION TO DISMISS
FILED BY HARTZELL PROPELLER,
INC.
Filed December 4, 1978
[caption omitted in printing]
STATE OF CALIFORNIA Jos
County or Los ANGELEs J ~
Daniet C. Catucakt, being first duly sworn, deposes
and says:
I am a member of the firm of Magana, Cathcart &
McCarthy which firm represents the plaintiff in the above
entitled action. This Affidavit is filed in opposition to
the defendant HartzeLt Prore..er, Inc.’s Supplemental
Brief in Support of Motion to Dismiss. Said brief, as filed
and served upon Affiant, contains as Exhibit “A” a copy of
a Summons and Complaint arising out of the accident
which is the subject matter of this litigation, said Summons
and Complaint having been filed in the courts of Scotland.
Defendant Hartzexu has urged this Court to construe the
attached pleading as evidence that the within action
should not be maintained within the United States. Such
a construction is unfounded and not inconsistent with the
position taken by plaintiff in this action. Suit was filed in
Scotland against the owners, operators and maintainers of
the Piper aircraft involved in the accident. It was neces-
sary as lawyers to file such an action before the statute of
limitations would run in Scotland since this Honorable
Court has not yet determined whether or not the real par-
ties in interest may maintain this action in the courts of
the United States. It will be noted that the suit in Scot-
land was brought on the eve of the second anniversary of
the accident. It is believed by your Affiant that the statute
Affidavit of Cathcart A59
of limitations in such actions in Scotland is two years. The
parties have no desire to pursue the within action in Scot-
land and merely had it filed because of the pending run-
ning of the statute of limitations and the question of
jurisdiction and/or forum non conveniens remaining un-
resolved here in the United States.
The investigation conducted by representatives of the
plaintiff fails to disclose that the operators or maintainers
were necessary or desirable parties defendant. To the
contrary, the theory of liability as against the defendants
before this Court are predicated on the usual products lia-
bility theories and are unrelated to any maintenance items.
We are dealing with defects claimed to have existed at
the time of manufacture related to the design and con-
struction of the propeller assembly, including propeller
governor and the single engine handling qualities and
characteristics of the Piper aircraft involved. The de-
sign, construction and certification of the subject aircraft
took place within the jurisdiction of this Court. A more
convenient forum for the prosecution of such an action
does not exist. To the extent that there is any negligent
maintenance or intervening cause, the defendant can cer-
tainly obtain this information by way of discovery in
England and Scotland. It is clear, however, under the
principles of joint and several liability, that any negligence
in the maintenance or operation of the aircraft does not
diminish the defendant’s liability as manufacturers.
Wuererore, your Affiant respectfully prays for an
Order denying the defendant’s motion to dismiss.
Respectfully submitted,
/s/ Dante. C. CaTucart
Daniel C. Cathcart
[jurat omitted in printing]
[certificate of service omitted in printing]
A60 Ex. “A” to Supplemental Memorandum
EXHIBIT “A” TO SUPPLEMENTAL MEMORANDUM
OF HARTZELL PROPELLER, INC, IN SUPPORT
OF MOTION TO DISMISS ON FORUM
NON CONVENIENS GROUNDS
Filed February 5, 1979
[caption omitted in printing]
Exhibit “A”
OPINION FOR HARTZELL PROPELLERS INC.
Article 4 of the Carriage by Air (Application of Pro-
visions ) Order 1967 provides that Schedule 1 of the Order
shall have effect in respect of carriage which is not inter-
national carriage as defined in Schedule 2. In my opinion
the flight which was investigated at the recent Review
Board hearing was one to which Article 4 of the 1967
Order applied.
Article 6 of the 1967 Order provides that, among
other sections, Section 5 of the Carriage by Air Act, 1961
shall apply to carriage to which the Order applies. Sec-
tion 5(1) of the 1961 Act is in the following terms: “No
action against a carrier's servant or agent which arises out
of damage to which the Convention relates shall, if he
was acting within the scope of his employment be brought
after more than two years, reckoned . . . fr.ia the date
on which the Aircraft ought to have arrived... .”
Article 29(1) of the 1967 Order is in the following
terms: “The right to damages shall be extinguished if an
action is not brought within two years, reckoned from .. .
the date on which the Aircraft ought to have arrived.”
I am not concerned about the incorporation of Sec-
tion 5(1) of the 1961 Act into the 1967 Order. An action
Ex. “A” to Supplemental Memorandum A61
was raised within two years against the pilot's representa-
tives in Scotland. If it had not been, I consider that it
would have been open to the pilot's representatives to
waive the application of Section 5(1) on the ground that
it purports to extinguish the remedy rather than the right.
Article 29(1) of the 1967 Order is in a different
position. Had an action not been raised within two years
against the carriers I am of opinion that any right to re-
cover damages from them would have been extinguished.
Also there could have been no question of waiving the
provisions of Article 29(1). I refer Shawcross and Beau-
mont, Air Law, 4th ed’n, at para. 443 Note 9.
In my opinion the provisions referred to have no
bearing on Hartzell’s position. Hartzell were not the
carriers. Hartzell are sued in the Court of the Middle
District of Pennsylvania on the ground that a defect in
the propeller caused or contributed to the accident. Had
Hartzell been a Scottish Company, and had no cause for
the accident been put forward other than a defect in their
product, I consider that the normal three year time bar
for fatal accident cases would have applied. I refer to
Section 17 of the Prescription and Limitation of Actions
(Scotland) Act 1973. Hartzell are minded to apply to
the Court in Pennsylvania to stay or dismiss the proceed-
ings there in return for an undertaking to submit to the
jurisdiction of the Scottish Courts. Assuming that a fresh
action is raised in Scotland against Hartzell prior to the
third anniversary of the accident, I see no reason why that
action should be held to be time barred. Similarly I see
no time bar objection arising if, instead of a fresh action
being raised, Hartzell are merely added as defenders to
the action that was raised in Scotland by the dependents
of the deceased passengers prior to the expiry of the two
year period. I base my opinion upon the proposition that
the 1961 Act and 1967 Order apply to actions brought
A62 Ex. “A” to Supplemental Memorandum
against carriers by air and their agents or servants but not
to persons, such as Hartzell, who are sued as delinquents
on the ground that they supplied a faulty component.
I should make clear why, if the conclusion stated in
the preceding paragraph is wrong, and the 1967 Order
applies to, among others, actions raised against component
manufacturers, I am of opinion that Article 29(1) cannot
be waived. My reason is that the effect of the Article is
radical in that it extinguishes the remedy. The Court
would in my view be bound to take the point. Also, for
completeness, I may say that if contrary to my view,
Article 29(1) applied to an action raised against Hartzell
it would not be a good answer to say that an action was
raised within two years against Hartzell in Pennsylvania.
I anticipate that a Scottish Court would interpret the
words “if an action is not brought” as referring to an action
raised in Scotland. Although I do not agree with this
narrow approach to interpretation, I note that in analogous
circumstances it was adopted by Roskill J. in Compania
Colombiana de Seguros v. Pacific Steam Navigation Co.
(1965) 1 Q. B. 101 at pp. 123-126.
THE OPINION OF
/s/ C. K. Davison
EDINBURGH.
12th January, 1979.
Stipulation A63
STIPULATION
Filed May 14, 1979
[caption omitted in printing]
It is hereby stipulated by and between the under-
signed as counsel for all parties to this litigation that dis-
covery may proceed in this action without prejudice to
the pending Motions to Dismiss on the grounds of forum
non conveniens and with the understanding that all ma-
terial obtained in discovery may be used in any action
instituted or to be instituted in Scotland on the same
cause of action as the instant action to the extent per-
mitted by the laws and procedural rules of the Scottish
Courts.
/s/ Lee C. Swartz /s/ Daniet C, Catucart
Lee C. Swartz, Esquire, | Daniel C. Cathcart,
Attorney for Plaintiff Esquire,
Attorney for Plaintiff
/s/ Cranves J. McKeivey /s/ RONA.p C. Scorr
Charles J. McKelvey, Ronald C. Scott,
Esquire, Esquire,
Attorney for Defendant, Attorney for Defendant,
Piper Aircraft Hartzell Propeller, Inc.
Corporation
Approved May 14th, 1979
/s/ R. Drxon HERMAN
AG4 Affidavit of Scott (12/17/79)
AFFIDAVIT OF RONALD C. SCOTT
Filed September 17, 1979
[Caption omitted in printing]
CoMMONWEALTH OF PENNSYLVANIA } pe
County OF PHILADELPHIA -
Ronap C. Scort, being first duly sworn, deposes and
ys:
I am attorney for Hartzell Propeller, Inc. in this mat-
ter. I have received a copy of the recent Affidavit of
Daniel C. Cathcart, Esquire and file this Affidavit in re-
sponse thereto.
In November and December of 1978, deponent at-
participated in a trial in Edinburgh, Scotland
the cause of the accident involved in this litiga-
An attorney for the families of the deceased pas-
also appeared in that matter. Over the course of
it came out that the pilot had been flying
tions conducive to mountain wave forma-
an area susceptible to mountain wave formation
altitudes in violation of his own employer's regula-
At the same hearing it was determined as a matter
that there was insufficient evidence of any defect
aircraft or its equipment, that the flight was a com-
t, and that the investigators, in failing to
error on the part of the pilot, were being “too
.” The essence of the findings, by which plaintiffs
are collaterally estopped, is that there was no defect on the
lane or its equipment shown to be causally related to
Counsel for plaintiff argues that this action is a
products liability action. It is not. It is a lawsuit al-
legedly to recover damages for the estates and survivors
:
+
et
apy LESTE
Affidavit of Scott (12/17/79) A65
of decedents. The plaintiffs present theory, which de-
fendant contends is barred by the findings in Scotland,
is that there was some product connection with the acci-
dent. A different theory is asserted in the actions in Scot-
land which do not name these defendants and name only
the owner, operator and pilot of the aircraft.
Counsel for plaintiff says “always in the past, U. S.
aircraft manufacturers have been amenable to suit for
personal injuries and wrongful death in the Federal Courts
of the United States, including actions brought in this
country by aliens.” Without citations, Mr. Cathcart refers
to various actions and insists that there is no precedent for
our proposition in the Motion to Dismiss. In so doing,
he ignores not only all of the cases cited in Hartzell’s
Brief and Supplemental Brief, but also the two most re-
cent decisions on the issue, one of which is from Mr. Cath-
cart’s home jurisdiction, California. The California deci-
sion, Hemmelgarn v. The Boeing Company, et al, 15 Avia-
tion Law Reporter 17,575 is attached hereto for the Court’s
assistance. The most recent case does not appear to have
been printed in official publications yet; but attached is a
summary of the case from Product Liability Reporter.
When the case is reported, deponent will supplement this
memorandum with an official citation.
Defendant Hartzell does, however, join counsel for
plaintiff in urging a prompt dismissal of the action in order
that it can be reinstituted and processed in Scotland while
witnesses and evidence are still available.
/s/ Ronaup C. Scotr
Ronald C. Scott
[juriat omitted in printing]
{certificate of service omitted in printing]
A66 District Court Memorandum
IN THE
UNITED STATES DISTRICT COURT
For THE Mipp.e District OF PENNSYLVANIA
Civil Action No. 77-1159
GAYNELL REYNO, Personal Representative of WIL-
LIAM FEHILLY, LIAM STUART FEHILLY, WIL-
LIAM JAMES McDOUGALL STORM, DAVID
VINCENT MORAN and PETER CUNNINGHAM
SCOTT,
Plaintiffs
v.
PIPER AIRCRAFT COMPANY, a corporation; AVCO
LYCOMING ENGINE DIVISION, a Division of
Avco Corporation; HARTZELL PROPELLER, INC.,
a corporation,
Defendants
MEMORANDUM
This action arises out of an airplane crash near Tulla,
Scotland on July 27, 1976 in which all persons aboard were
killed. The Plaintiff, Gaynell Reyno, instituted this suit
as the personal representative of five decedents, William
Fehilly, Liam Stuart Fehilly, William James McDougal
Strom, David Vincent Moran, and Peter Cunningham
Scott. Gaynell Reyno seeks general damages for the heirs
and next of kin of the above decedents and damages for
funeral and burial expenses in this suit styled as one for
wrongful death on the basis of products liability and negli-
gence theories. The remaining Defendants, Piper Aircraft
District Court Memorandum A67
- Company and Hartzell Propeller, Inc., were the manufac-
turers of the aircraft and propeller respectively. A num-
ber of motions are presently before the court, a motion to
dismiss filed by Defendant Hartzell Propeller, a motion
for judgment on the pleadings or for summary judgment
filed by Piper Aircraft, and two motions to strike a re-
sponsive brief filed by the Plaintiff. After reviewing the
extensive materials submitted by all parties, we have con-
cluded that this action must be dismissed on the ground of
forum non conveniens. This dismissal will be conditioned
on the Defendants abiding by their stipulation to submit
to the jurisdiction of the courts of Scotland and their
waiver of the Scottish statute of limitations.
Several issues were raised by the motions of the De-
fendants. Other than their main argument that the action
should be dismissed under the doctrine of forum non con-
veniens, the Defendants also asserted that under applica-
ble choice of laws rules that the law of Scotland would
control this action and that pursuant to Scottish law, the
Plaintiff neither has standing nor a right to proceed under
the theory of strict tort liability. This question of the ap-
plicable law is interrelated with the analysis for forum non
conveniens and because of our decision that the Defend-
ants have shown overwhelming reasons for dismissal under
this doctrine, we need not directly confront the standing
and liability issues. The Plaintiff has also raised the ques-
tion of estoppel which we have found to be unpersuasive.
Our primary attention therefore is focused on the
factors applicable to the doctrine of forum non conveniens
and the question whether we should exercise jurisdiction
over this action brought by reason of an aircraft accident
in Scotland, in which Scottish citizens who were passengers
and a Scottish pilot, acting in the course of his employment
with a Scottish Air Service, were killed while flying in
Scottish airspace and when all decedents’ survivors, the
A68 District Court Memorandum
real parties in interest, are citizens and residents of Scot-
land and more particularly, when the only contact with
Pennsylvania is that it was the site of the manufacture of
the airplane involved in this litigation, not the propeller
which was manufactured and designed in Ohio, over seven
years prior to the date of the fatal accident. Too much
has happened from the date the airplane left the plant of
Piper Aircraft, which goes to the heart of the question of
liability, that the contact with this forum with respect to
this action can at best be described as plainly insignificant.
The procedural history of this case is important to
our decision of dismissal. The action was instituted by
Plaintiff Reyno in the Superior Court of the state of Cali-
fornia for the county of Los Angeles in July of 1977.
After being removed to federal court in August of that
year, Defendant Hartzell filed a motion to dismiss the
action for lack of personal jurisdiction or in the alternative
to transfer the action pursuant to 28 U. S. C. § 1404(a).
Defendant Piper then joined in Defendants Hartzell’s mo-
tion to transfer the action on November 23, 1977. The
District Court entered an order on December 21, 1977
granting Defendant Hartzell’s motion to quash service of
process and granting the motion to transfer this action to
the United States District Court for the Middle District of
Pennsylvania. The quashing of service of process to
Hartzell was based on due process considerations set forth
in International Shoe Company v. Washington, 326 U. S.
310 (1945). The court did not dismiss the action against
Defendant Hartzell since valid service against it was pos-
sible in the Middle District of Pennsylvania. The im-
portance of the transfer of the action and the quashing of
service against Hartzell lies in the applicable choice of
laws rule that is relevant to each Defendant under rules
of Van Dusen v. Barrack, 376 U. S. 612 (1964) and
Klaxon Co. v. Stenor Electric Manufacturing, 313 U. S.
481 (1944).
District Court Memorandum A69
The facts as noted center on the crash of an aircraft
on July 27, 1976 in which the pilot and all passengers were
killed in the navigable air space near Tulla, Scotland. The
aircraft involved in the accident was a Piper Model TA-23
bearing British registration mark G-AYSF which was
manufactured by Defendant Piper at Lock Haven, Penn-
sylvania. The plane’s propeller was designed and manu-
factured by Defendant Hartzell Propeller, Inc. in Ohio.
The aircraft was being piloted at the time of the accident
by a Scottish citizen and resident, over mountainous ter-
rain in southern Scotland. Subsequent to the manufacture
of the aircraft involved in this accident it was sold and
delivered to a purchaser in Ohio for use in the United
States. By a chain of events, apparently still unknown to
the Defendants, the plane came to be owned and operated
by a Scottish air-taxy company in Scotland and the British
Isles. The plane was owned, operated, maintained, and
serviced by the Scottish owner for several years preceding
the accident of July 27, 1976. The British Department of
Trade Investigation investigated the accident shortly after
its occurrence. Presently, what remains of the wreckage
is in the possession of the British Department of Trade
Investigation.
The Plaintiff, Gaynell Reyno instituted this action as
the personal representative of the estates of five of the
decedents. All of these decedents were citizens and resi-
of the country of Scotland. Also, all heirs and next
and all those persons entitled to recover by virtue
deaths of the passengers, (if any recovery is de-
are citizens and residents of the country of {icot-
laintiff Reyno is a citizen and resident of Calif srnia
related to the decedents.
Defendants assert that the accident was due to
error or improper maintenance and servicing of the
and in this respect have stated their desire and
ttle
A70 District Cours Memorandum
inability to join the operating company by whom the pilot
was employed, the pilot’s estate, and the owner and main-
tainer of the aircraft. A lawsuit has been brought before
the courts of Scotland naming as defendants the operating
company, McDonald Aviation, Ltd., the owner of the
plane, Air Navigation and Trading Company, Ltd., the
executor of the pilot’s estate, and the Civil Aviation Au-
thority. Also an action was commenced in the courts of
Great Britain against Piper Aircraft and Hartzell Propellers
along with MacDonald Aviation and Air Navigation and
Trading Company by a personal representative of the sixth
passenger in the aircraft at the time of the accident, the
only passenger not represented by Gaynell Reyno in the
instant action. Therefore at least one action is pending
before the courts in the United Kingdom against the
present Defendants and other involved parties.
We now begin with a discussion of the factors that
we believe substantially point to the dismissal of this
action under the doctrine of forum non conveniens. We
have the inherent power to refuse jurisdiction over a case
such as this one where the interests of justice require that
the suit be brought in a foreign country. Gulf Oil Corpo-
ration v. Gilbert, 330 U. S. 501 (1947); DeMateos v.
Texaco, Inc., 562 F. 2d 895 (3d Cir. 1977), cert. denied,
435 U. S. 904 (1978); Fitzgerald v. Texaco, Inc., 521 F. 2d
448 (2d Cir. 1975) cert. denied, 423 U. S. 1052 (1976);
Dahl v. United Technologies Corporation, 472 F. Supp.
696 (D. Del. 1979).
The general factors that we must consider in deter-
mining whether to dismiss an action for forum non con-
veniens were set forth by the Supreme Court in Gulf Oil
Corporation v. Gilbert, 330 U. S. 501 (1947). Mr. Justice
Jackson enumerated in that decision numerous private and
public interests that should be considered under the doc-
trine. The factors pertaining to the private interests of
District Court Memorandum A71
the litigants are the “relative ease of access to sources of
proof; availability of compulsory process for attendance
of unwilling, and the cost of obtaining attendance of will-
ing witnesses; possibility of view of premises, if view would
be appropriate to the action; and all other practical prob-
lems that make trial of a case casy, expeditious, and in-
expensive” Id. at 508. The public factors bearing on the
question include the administrative difficulties flowing
from court congestion, an interest in having local contro-
versies decided at home, the interest in having the trial of
a diversity case in a forum that is at home with the law
that must govern the action, the avoidance of unnecessary
problems and conflicts of law foreign to the Court, and
the unfairness of burdening citizens in an unrelated forum
with jury duty. Id. at 508-509.
The above cited factors have generally been followed
by all courts presented with the issue of whether a case
should be dismissed because a foreigner forum is the more
convenient one. See, e.g., DeMateos v. Texaco, Inc., 562
F, 2d 895, 899 (3d Cir. 1977); Fitzgerald v. Texaco, Inc.,
521 F. 2d 448, 450-51 (2d Cir. 1975); J. F. Pritchard and
Co. v. Dow Chemical of Canada, 462 F. 2d 998, 1000 (8th
Cir. 1972); Fitzgerald v. Westland Marine Corporation,
369 F. 2d 499, 501-02 (2d Cir. 1966); Dahl v. United
Technologies Corporation, 472 F. Supp. 696, 699 (D. Del.
1979); Top Form Mills v. Sociedad Nationale Industria,
428 F. Supp. 1237, 1252-53 (S. D. N. Y. 1977); Michell v.
General Motors Corporation, 439 F. Supp. 24, 26-27 (N. D.
Ohio 1977); Texaco Trinidad, Inc. v. Astro Exito Nave-
gacion §. A., 437 F. Supp. 331, 332 (S. D. N. Y.); Farman-
farmaian v. Gulf Oil Corporation, 437 F. Supp. 910, 923
(S. D. N. Y. 1977); DelRio v. Ballenger Corporation, 391
F. Supp. 1002, 1004 (D. S. C. 1975); Domingo v. States
Marine Lines, 340 F. Supp. 811, 814-13 (S. D. N. Y. 1972);
McCarthy v. Canadian National Railways, 322 F. Supp.
A72 District Court Memorandum
1197, 1199 (D. Mass. 1971); Olympic Corporation vo.
Societe Generale, 333 F. Supp. 121, 123-24 (S. D. N. Y.
1971). We have carefully read each of the above cited
than an abuse of our discretion if we did not dismiss this
action on forum non conveniens grounds as the Gulf Oil
criteria overwhelmingly point to dismissal.
The first factor that we must consider is whether an
alternative forum is open to the Plaintiff if this motion is
dismissed. Generally, it has been stated by the courts that
the doctrine of forum non conveniens presupposes that an
alternative more appropriate and convenient forum is
available. See, e.g., DelRio v. Ballenger Corporation, 391
F. Supp. 1002, 1006 (D. 8. C. 1978), Texaco Trinidad v.
Astro Exito Navegacion S. A., 430 F. Supp. 331, 332
(S. D. N. Y. 1977); Farmanfarmaian v. Gulf Oil Corpora-
tion, 437 F. Supp. 910, 915 (S. D. N. Y. 1977). This prin-
ciple is taken from the Gulf Oil decision in which it is
stated “[i]n all cases in which the doctrine of forum non
conveniens comes into play, it presupposes at least two
forums in which the defendant is amenable to process. . . .”
Gulf Oil at 506-07. In the instant motion the Defendants
have consented to submit to the jurisdiction of the Scottish
courts of law and we have noted our intention of condi-
tioning the dismissal of this action on their submission to
the jurisdiction of such courts and their waiver of any
statute of limitation. Plaintiff has an alternative forum
available to her and in fact a-case is proceeding in the
foreign courts already.
Next, we turn to the important factor of Plaintiff's
choice of forum. As stated in Gulf Oil, “unless the bal-
ance is strongly in favor of the defendant, the plaintiff's
choice of forum should rarely be disturbed” Id. at 508.
Here the Plaintiff's first choice was the California state
District Court Memorandum A73
Superior Court. Plaintiff relies on a number of cases under
28 U.S. C. § 1404(a) in which the Plaintiffs were Ameri-
can citizens. This case, however, does not involve section
1404(a) as the determination rests on our inherent power
to dismiss and it also does not involve Americans as real
parties in interest. Rather, the Plaintiff is a representative
of foreign citizens and residents seeking a forum in the
United States because of the more liberal rules concerning
products liability law.
Generally, the courts have been less solicitous when
the plaintiff is not an American citizen or resident and,
particularly when the foreign citizens seek to benefit from
the more liberal tort rules provided for the protection of
citizens and residents of the United States. As stated in
Farmanfarmaian v. Gulf Oil Corporation, 437 F. Supp.
910, 927 (S. D. N. Y. 1977), when a case involves a “claim
of a foreign plaintiff, [his] choice of forum should be
given less weight than the choice of an American plain-
tiff... .” And in Olympic Corporation v. Societe Gener-
ale, 462 F, 2d 376, 378 (2d Cir. 1972), the court stressed
that the balance of the Gulf Oil factors need not be as
strong in favor of defendants when the plaintiff is not an
American citizen. See also, Olympic Corporation v. So-
olete Generale, 333 F. Supp. 121, 124-(S. D. N. Y. 1971);
Michell v. General Motors Corporation, 439 F, Supp. 24
(N. D. Ohio 1977).
Also, the plaintiff's choice of forum is generally given
less weight when the forum selected is not the plaintiff's
home jurisdiction. Fitzgerald v. Texaco, Inc., 521 F. 2d
448, 451 (2d Cir. 1975); McCarthy v. Canadian National
Railways, 322 F. Supp. 1197, 1199 (D. Mass. 1971). In
this case the real parties in interest, the heirs and next of
kin of William Fehilly, Liam Stuart Fehilly, William James
McDougall Strom, David Vincent Moran, and Peter
Scott, are not American citizens or residents, but rather,
A74 District Court Memorandum
citizens and residents of Scotland. Since the real parties in
interest are not American citizens, and the forum of either
California or the Middle District are not in anyway their
“home” forum, this factor of plaintiff's choice of forum is
entitled to little weight.
The next grouping of factors that we will weigh are
the private interests of the litigants, including relative ease
of access to sources of proof, availability of compulsory
process, cost of obtaining willing witnesses, necessity of a
view of the premises, and the site of the investigation of an
accident. A review of the facts in this case illustrates that
all such private interests point to Scotland as the appropri-
ate forum for this litigation.
Nearly all events relevant to this action occurred out-
side of the Middle District of Pennsylvania. The only con-
nection with this forum is the fact that the plane was
manufactured here over seven years before the accident.
The only contact with Plaintiff's choice of forum, Califor-
nia, is that Plaintiff's attorney and expert reside there.
Convenience to counsel or to expert witnesses, it should
be noted, is of small importance in the balancing of fac-
tors. See Car-Freshner Corporation v. Auto Aid Manu-
facturing Corporation, 438 F. Supp. 82, 85 (N. D. N. Y.
1977). The connections with Scotland are overwhelming.
The accident occurred in Scotland, the real parties in in-
terest are citizens of Scotland, the decedents were all citi-
zens of Scotland, the investigation of the accident oc-
curred in Scotland, the aircraft was owned, operated, and
maintained by a Scottish company, the pilot was Scottish,
the wreckage remains in the possession of the foreign au-
thorities, nearly all witnesses needed for the defense of
this suit are located in Scotland, and all witnesses to dam-
ages are located in Scotland.
The ease of access to proof element strongly points to
dismissal of this action. First, all evidence as to damages,
District Court Memorandum A75
both witnesses and documents, is located in Scotland.
Ease of access to sources of proof of damages is an impor-
tant factor in a wrongful death action. Domingo v. States
Marine Lines, 340 F. Supp. 811, 815 (S. D. N. Y. 1972).
Furthermore, nearly all witnesses necessary for the defense
of this suit are located in the British Isles. For example,
witnesses regarding the maintenance of the aircraft are in
Great Britain, witnesses concerning the training of the pilot
are located there, and witnesses relating to the investiga-
tion of the accident are in the British Isles. None of these
witnesses are subject to compulsory process. Clearly, these
witnesses are critical to this case and since they are lo-
cated in Scotland, it would be more convenient for the
witnesses and less costly for the litigants to litigate this
matter in Scotland. See, Fitzgerald v. Texaco, Inc., 521
F. 2d 448, 451 (2d Cir. 1975); Dahl v. United Technolo-
gies Corporation, 472 F. Supp. 696 (D. Del. 1979); Do-
mingo v. States Marine Lines, 34 F. Supp. 811, 815
(S. D. N. Y. 1972); Top Form Mills v. Sociedad Nationale
Industria, 428 F. Supp. 1237, 1253 (S. D. N. Y. 1977); J. F.
Pritchard & Co. v. Dow Chemical of Canada, 462 F. 2d
998, 1002 (8th Cir. 1972); DelRio v. Ballenger Corpora-
tion, 391 F. Supp. 1002, 1004 (D. S. C. 1975).
Plaintiff relies on the argument that the essential ele-
ments needed for proof of her case are present in this
forum since the plane was designed and manufactured
here. We note that the alleged defective component part,
the propeller, was designed and manufactured outside of
this forum. Also the aircraft was manufactured over seven
years prior to the accident and evidence of any changes in
the plane located in Scotland. Even Plaintiff admits that
all witnesses to damages reside in Scotland. Furthermore,
we cannot accept Plaintiff's argument that the evidence go-
ing to legitimately raised defenses is irrelevant to our de-
termination. The interests of justice require that a trial be
fair to all parties, not just the Plaintiff. Pe
A76 District Court Memorandum
While there are no doubt numerous cases that have
reached this same conclusion based on fundamental fair-
ness, we will specifically point to just two. The first case
we rely on is Michell v. General Motors Corporation, 439
F. Supp. 24 (N. D. Ohio 1977). In Michell the court held
that mere design and manufacture of an infant seat in
Michigan was not crucial in the balancing of factors and
it dismissed the suit on forum non conveniens grounds
where the injury was to Canadian plaintiffs, involved a
Canadian accident, when presentation of Canadian wit-
nesses was necessary and could not be guaranteed in the
United States. Id. at 25-26. All of these factors are pres-
ent in the instant case and like the Michell court, we find
the evidence relating to design in this action to be over-
whelmed by the evidence needed from Scottish sources.
The second case on point on this question is Dahl v.
United Technologies Corporation, 472 F. Supp. 696 (D.
Del. 1979). Dahl was brought in Delaware by the per-
sonal representative of four Norwegians who died in a
crash of a Norwegian owned and operated helicopter in
Norwegian territorial waters against the helicopter manu-
facturer on the basis of design and manufacture defects.
Chief Judge Latchum discussed the nearly identical fac-
tual pattern as we have here in the following manner:
. .. a substantial amount of the testimonial evidence
will come from Norwegians. Testimony from persons
who knew the decedents will be relevant to the dam-
ages issue. Among the potential liability witnesses
are employees of Helikopter Service AIS, employees
from other firms in Norway that serviced or made
installations on the helicopter, and the Norwegian
government officials who investigated the accident.
Id. at 700. We think the chief judge was absolutely cor-
rect, that we must look to all evidence that is necessary
District Court Memorandum A77
for a fair trial and in this case the place to find such evi-
dence is Scotland.
Interrelated with the above discussion is the fact that
the witnesses and other evidentiary materials that are lo-
cated in Scotland are beyond the reach of compulsory
process of this court. The unavailability of compulsory
process to compel the attendance of witnesses necessary
for a complete and fair trial has been recognized as a
critical factor in the dismissal of cases for forum non con-
veniens. See e.g., Fitzgerald v. Texaco, Inc., 521 F. 2d
448, 451 (2d Cir. 1975); Fitzgerald v. Westland Marine
Corporation, 369 F. 2d 499 (2d Cir. 1966); Dahl v. United
Technologies Corporation, 472 F. Supp. 696, 700 (D. Del.
1979); Michell v. General Motors Corporation, 439 F.
Supp. 24, 27 (N. D. Ohio 1977); Texaco Trinidad, Inc. v.
Astro Exito Navegacion S.A., 437 F. Supp. 331 (S. D.
N. Y. 1977); DelRio v. Ballenger Corporation, 391 F.
Supp. 1002, 1004 (D. S. C. 1975); Domingo v. States Ma-
rine Lines, 340 F. Supp. 811, 815 (S. D. N. Y. 1972).
Finally, the absence of necessary third parties weighs
heavily on our determination that the Middle District is
not a suitable forum for this litigation. The Defendants
have pursuasively argued that persons located in Scotland
ought to be made parties to this suit. These include the
pilot, the owner of the plane, and the operating company.
Since the Defendants in this action cannot implead these
necessary parties it would be unfair to make Piper and
Hartzel proceed to trial in this forum. This inability to
implead parties located in foreign countries has likewise
been viewed as a critical factor by the courts. See e.g.,
Gulf Oil Corporation v. Gilbert, 330 U. S. 501, 511 (1946);
Texaco Trinidad, Inc. v. Astro Exito Navegacion S.A.,
437 F. Supp. 331, 334 (S. D. N. Y. 1977); Fitzgerald v.
Texaco, Inc., 521 F. 2d 448, 453 (2d Cir. 1975); Fitz-
A78 District Court Memorandum
gerald v. Westland Marine Corporation, 369 F. 2d 499,
502 (2d Cir. 1966); Olympic Corporation v. Societe Gen-
erale, 333 F. Supp. 121, 124 (S. D. N. Y. 1971); Domingo
v. States Marine Lines, 340 F. Supp. 811, 816 (S. D. N. Y.
1972). These potential defendants could be reached in
Scotland‘and in fact they have been joined with the in-
stant Defendants in a suit in the British Isles. Certainly
it would be fairer to all parties and less costly if the entire
case was presented to one jury with available testimony
from all relevant witnesses.
The last factor that we will discuss pertaining to the
private interests is the necessity of a view. More gen-
erally, we believe this factor of Gulf Oil requires us to
consider, as many courts have done, where the accident
or event took place. All facts relevant to the crash are
in Scotland, other than the fact that the manufacture and
design of the plane occurred in the United States seven
years before. If weight should be assigned to this “view”
criteria, it certainly favors the Defendants. Familiarity
with the topography around Tulla, Scotland and inspec-
tion of the wreakage of the plane would be aided by a trial
in the British Isles where the accident occurred.
We now will look to the factors concerning the public
interest which we believe even more strongly point to
dismissal. These factors include court congestion, local
interest in the lawsuit, court familiarity with the law that
will govern the action, the avoidance of unnecessary prob-
lems and conflicts of law foreign to the court and the un-
fairness of burdening citizens in an unrelated forum with
jury duty. Gulf Oil Co. v. Gilbert, 330 U. S. 501, 507-09
(1946); Demateos v. Texaco, Inc., 562 F. 2d 895, 899,
n. 2 (3d Cir. 1977); Michell v. General Motors Corpora-
tion, 439 F. Supp. 24, 27 (N. D. Ohio 1977).
Uppermost in our weighing of these public interest
factors is that a trial in this forum would be hopelessly
District Court Memorandum A79
complex and confusing for a jury as different laws will
apply to different parties. From our review of the ap-
plicable choice of law rules, it appears that Pennsylvania
law would apply to Defendant Piper and that Scottish
law would apply to Defendant Hartzell.
The law is clear that we must apply the choice of law
rule of the state in which we sit, Pennsylvania. Klaxon
Co. v. Stentor Electric Manufacturing Co., 313 U. S. 487
(1941). However, when a case is transferred pursuant to
28 U. S. C. § 1404(a), we then apply the choice of law
rules of the state from which the case was transferred.
Van Dusen v. Barrack, 376 U. S. 612 (1964). Thus in
this case we must apply the California choice of law rules
to Defendant Piper. In applying the choice of law rules
of California we have three choices of law, California,
Pennsylvania, and Scottish. With respect to Defendant
Hartzell, the applicable law is not as easily arrived at.
Defendant Hartzell as previously noted, was found to
have insufficient contact with the state of California and
service was quashed. The District Court of California did
not dismiss the action to Defendant Hartzell, but instead
properly transferred the action to this forum. We use
“properly” in the sense that the court had the power to
transfer the action as to Defendant Hartzell even though
service was quashed. Plaintiff argues that the Van Dusen
rule applies to Hartzell as well as Defendant Piper, how-
ever, for the reasons that follow, we cannot accept this
assertion.
The purpose of the Van Dusen rule was to prevent a
party from obtaining a change in the law that would be
applied to a case by seeking a transfer of the action. In
essence, the Van Dusen Court ruled that a transfer under
section 1404 should result in a change of courtrooms only,
not a change in the applicable law. In the instant case
the district court of California held that the law of Cali-
A80 District Court Memorandum
fornia could not apply to Defendant Hartzell because of
insufficient contacts with that state. The question we are
presented with is whether the Plaintiff in this action can
capture the law of California under Van Dusen for trans-
portation to this district and have it apply to Defendant
Hartzell when service against Defendant Hartzell was im-
proper in California. We hold that Plaintiff cannot ac-
complish this. Simply, the Plaintiff cannot take advantage
of the law of California when she could not properly ob-
tain jurisdiction over Defendant Hartzell there. Thus, to
Hartzell we must apply Pennsylvania choice of law rules.
First, we will briefly discuss whether California choice
of law rules requires that we apply California, Pennsyl-
vania, or Scottish law to Defendant Piper. California
courts follow the governmental interest approach in re-
solving conflict of law issues. Reich v. Purcell, 67 Cal.
2d 551, 432 P. 2d 727 (1967); Hurtado v. Superior Court,
11 Cal. 3d 574, 522 P. 2d 666 (1974). As Plaintiff states
in her brief the “governmental interest approach differs
greatly from the significant contacts approach utilized in
Pennsylvania.” The governmental interest approach, in
determining the law applicable in a California forum,
applies to situations involving a foreign country and the
choice between the two. Hurtado v. Superior Court, 11
Cal. 3d 574, 522 P. 2d 666 (1974). The objective of the
analysis is to determine the law that most appropriately
applies to the issue involved.
The governmental interest approach involves three
steps of analysis. First, the applicable legal issue and
law must be identified. Second, the state interest under-
lying the law must be determined. Third, it must then be
determined if that interest would be furthered through
application of the states’ law to resolve the specific issues
involved in the case. We intend to make no definitive
ruling on what law will apply under the California gov-
District Court Memorandum A81
ernmental interest analysis. Rather, our discussion will
go only so far as to hold that either Pennsylvania or Scot-
tish law will apply under the California choice of laws
rules. We are relegated to this less that complete analy-
sis because of our unfamiliarity with Scottish law which
in itself is a factor supportive of dismissal of the action.
Areas of conflict are present between these three juris-
dictions, ie. Pennsylvania, California, and Scotland. First,
Scottish law does not allow a personal representative to
bring an action of this kind in Scotland. Under Scottish
law, a personal representative may only bring an action
for funeral expenses. Otherwise, an action of this type
may be brought only by the deceased's relatives or de-
pendents. We have previously stated that Gaynell Reyno
meets neither of these requirements. Both Pennsylvania
and California appear to permit such suits. Second, the
law of Scotland has not adopted and does not recognize
the theory of strict products liability. The only basis for
liability in Scotland for the manufacturer of a defective
product is negligence. In contrast, both Pennsylvania
and California recognize strict liability.
What interests of the state these laws promote must
be identified by reference to the interpretations of the laws
by the respective forum courts. California courts have
held that the states interest in creating a cause of action
for wrongful death lies in governing the distribution of
proceeds to beneficiaries and also the interest of deterring
conduct within its borders that takes life. Hurtado v.
Superior Court, 114 Cal. 3d 574, 522 P. 2d 666 (1974).
For the purposes of this discussion we will assume that
similar interests are promoted by the Pennsylvania laws.
Since the accident did not occur in either Pennsylvania or
California and because none of the decedents were resi-
dents of either of these states, it would appear that the
application of either Pennsylvania or California law would
A82 District Court Memorandum
not further the purpose of the wrongful death laws. If
the purpose of the Scottish law, permitting recovery for
relatives of decedents, is similar, it would seem that its
interests would be furthered by the application of the law
of Scotland.
Particularly, this is true with respect to the rule of
law in Scotland that only relatives or dependents of a
deceased may bring an action of the type of the instant
action and not a personal representative unrelated to the
decedent. We, however, only have affidavits from lawyers
from Scotland as to what the rules of law are in that
country and thus we cannot make, as we said before, any
definitive ruling on the purpose of the Scottish law or
thereby the choice of law. We do agree with the Plaintiff
that in line with the California decisions, that the restric-
tions on recovery that exist in Scotland would generally
not be applied in a choice of laws situation as the foreign
country would likely have no interest in restricting any
recovery its citizens might receive in foreign courts from
foreign defendants. See, Hurtado v. Superior Court, 114
Cal. 3d 574, 522 P. 2d 666 (1974). We do not believe
the provisions restricting suits of this nature to relatives
of the decedents fall within this general principle however.
Such a restriction would likely be for the purpose of in-
suring that suits are brought by persons interested in the
action so that competence of counsel and administration
of a suit are in the hands of those parties with the ultimate
interest.
We therefore return to our previously enunciated
conclusion that the law of California would not be applied
under the choice of law rules of California as that state has
no interest in having its laws apply. Plaintiff admits this
fact. Furthermore, we believe that Pennsylvania also has
no governmental interest in having its wrongful death laws
apply. For the protection of the real parties in interest in
District Court Memorandum A83
this suit we believe that the application of Scottish law
would further the purpose of the laws of Scotland with
respect to the restrictions on proper plaintiffs. We believe
that the California courts would therefore apply the law
of Scotland to this suit. Even if we assume that the Plain-
tiff is correct and that Pennsylvania law would be applied
by the California courts to this case, this does not aid the
Plaintiffs position.
There exists a conflict among the three forums in the
law of products liability. Scotland only recognizes negli-
gence as a basis for liability while the two states apply the
rule of strict liability. California has no interests in having
its products liability law apply and thus under the Cali-
fornia choice of law rules it would not apply its own law.
See, Bernhard v. Harrah's Club, 16 Cal. 3d 313, 546 P. 2d
719 (1976); Reich v. Purcell, 67 Cal. 2d 551, 432 P. 2d
727 (1967). Our choice is thus between Scottish law and
the law of Pennsylvania.
The law of Scotland in not recognizing strict liability
is more limited in terms of liability than Pennsylvania.
Generally, such a restriction provides an indication that
the law seeks to limit the liability of its resident manufac-
turers to those cases where negligence can be shown; that
only culpable conduct will result in liability. If the only
purpose of the requirement of proof of negligence is to aid
manufacturers in Scotland, then we may assume that the
purpose of the law will not be furthered by applying it to
American manufacturers.
Pennsylvania's interests in recognizing strict liability
is foremost in ensuring that citizens will be compensated
for injuries resulting from defective products. There does
exist in the imposition of strict liability on manufacturers
an element of deterence. While the element of compen-
sating injured residents outweighs the deterence factor,
at least some slight interest on the part of the state of
A84 District Court Memorandum
Pennsylvania would be furthered if the law of Pennsyl-
vania were applied to Defendant Piper. No Pennsylvania
governmental interest, however, would be promoted by
the application of Pennsylvania law to Defendant Hartzell.
Since none of the decedents nor their relatives were Penn-
sylvania citizens, Pennsylvania's interest in compensating
its injured citizens is of little weight. While the interest
of Pennsylvania in applying its laws is indeed slight,
neither of the other forums has any apparent interest in
applying their laws and we therefore assume that Cali-
fornia courts would apply Pennsylvania law under the
choice of law rules of California.
In summary, under the California choice of law rules,
it appears the law of Scotland would be applied to De-
fendant Piper with respect to the wrongful death laws.
Under this interpretation, Plaintiff would not be a proper
litigant. Second, the strict liability law of Pennsylvania
would likely apply to Defendant Piper and not the negli-
gence law of Scotland.
Next, we will briefly review the law that should apply
to Defendant Hartzell under Pennsylvania choice of law
rules, As Plaintiff accurately points out in her brief, the
courts of Pennsylvania follow the significant contacts ap-
proach, In Griffith v. United Airlines, 416 Pa, 2d 1, 203
A, 2d 796 (1964), the Supreme Court of Pennsylvania
adopted the rule of the Restatement Second of Conflicts of
Laws, section 145, which states that in a tort action, the
rights and liabilities of the parties are determined by the
local law which has the most significant relationship to the
occurrence or to the parties. “To determine which law
has the most significant relationship, the court is instructed
to consider: the place where the injury occurred; the place
where the conduct causing the injury occurred; the domi-
cile, residence, place of incorporation, or the place of busi-
ness of the parties; and the place where the relationship
District Court Memorandum A85
between the parties is centered.” Lewis v. Chemetron
Corporation, 448 F. Supp. 211, 212 (W. D. Pa. 1978);
Zurzola v. General Motors Corporation, 503 F. 2d 403 (3d
Cir. 1974); Samuelson v. Susen, 576 F. 2d 546 (3d Cir.
1978). Any analysis of the relevant contracts in the in-
stant suit leads to the inevitable conclusion that the courts
of Pennsylvania would apply the law of Scotland to this
action.
To reiterate some of the crucial aspects of the con-
tacts, we begin with the fact of the accident in Scotland.
The conduct giving rise to the injury occurred in one of
three places, Ohio, Pennsylvania, or Scotland. The real
parties in interest are domiciled in Scotland, are residents
of Scotland, while the Defendants are located in Ohio and
Pennsylvania. We will not outline the contact in any more
detail as we find the weight of the contacts with Scotland
to be overwhelming. We hold that the law of Scotland
would apply in the instant action to Defendant Hartzell,
We will now once again turn our attention to the pub-
lic interest factors of Gulf Oil. As Gulf Oil recognized
an extremely important factor in the balance of interests
is the fact that foreign law will govern all or part of a
case. 330 U. S. at 508; see also, Farmanfarmaian v. Gulf
Oil Corporation, 437 F. Supp. 910, 924 (S. D. N. Y. 1977);
Domingo v. States Marine Lines, 340 F. Supp. 811, 816
(S. D. N. ¥. 1972); Michell v. General Motors Corpora-
tion, 439 F. Supp. 24, 27 (N. D. Ohio 1977); DelRio v.
Ballenger Corporation, 391 F. Supp. 1002, 1004 (D. S. C.
1975); Fitzgerald v. Westland Marine Corporation, 369
F. 2d 499, 502 (2d Cir, 1966); McCarthy v. Canadian
National Railways, 322 F. Supp. 1197 (D. Mass. 1971).
We have determined that Scottish law will govern part of
this case. We, of course, are not familiar with the law of
Scotland and would have to rely on experts from that
country. See, Fitzgerald v. Texaco, Inc., 521 F. 2d 448
A86 District Court Memorandum
(2d Cir, 1975). Clearly, it would be better for all parties
for this case to proceed in a court in Scotland that is at
home with the law of that country. This case is further
complicated by the fact that different laws would apply
to different parties. The result of this would no doubt
cause hopeless confusion and would likely lead to incon-
sistent or an inequitable result if a trial were held here.
Dismissal of this action avoids unnecessary problems of
conflict of laws and the application of foreign law.
Another factor that Gulf Oil suggests that we con-
sider is the unfairness of burdening citizens in this forum
with jury duty when this forum has little connection with
the controversy. The only connection with this forum is
that the plane was manufactured in this district years be-
fore this accident. Trial of this case would take weeks and
we do find that it would be an unfair burden to impose
this on the citizens in this community. Also, it would be
a huge burden on this court in terms of both time and
the costs involved. Our court is too congested for us to
try an action that belongs in a foreign forum. See, Gulf
Oil at 508509; DelRio v. Ballenger Corporation, 391 F.
Supp. 1002, 1005 (D. S. C. 1975); Michell v. General Mo-
tors Corporation, 439 F. Supp. 24, 28 (N. D. Ohio 1977);
Domingo v. States Marine Lines, 340 F. Supp. 811, 816
(S. D. N. Y. 1972); Dahl v, United Technologies Corpora-
tion, 472 F. Supp. 696, 701 (D. Del. 1979).
If we attempted to try this action in this forum the
administrative and legal difficulties would be extreme.
The legal problems include determining the serious and
complex conflict of law questions, which this memoran-
dum has only touched on. Likewise, the large numbers
of witnesses that would be needed from Scotland, the
British Isles, Ohio, and California would likely cause ad-
ministrative difficulties. The physical evidence is in Scot-
land or the British Isles. We also note that Scotland has
District Court Memorandum A87
a large interest in the outcome of this litigation as it oc-
curred in its airspace. The case thus may shed light on
considerations which affect the safety of its citizens. See,
Fitzgerald v. Texaco, Inc., 521 F. 2d 448 (2d Cir. 1975) ).
All of these matters lead us to conclude that the public
interest would be better served by a trial in Scotland.
That the law of Scotland is not as helpful to the real
parties ininterest is not a weighty consideration. We must
determine which forum is proper because of convenience
and the interests of justice and the decision cannot be cor-
rectly made if the amount of a plaintiff's likely award is
given undue weight. Generally, the cases that have been
dismissed on the ground of forum non conveniens all in-
volve situations where a party enters a forum with the
hope of seeking more liberal rules of recovery. If the
foreign law that ought to govern a case does not protect
its citizens as fully as the law of the dismissing forum,
that is a matter to be dealt with in the foreign forum. See
e.g., Michell v. General Motors Corporation, 439 F. Supp.
24, 27 (N. D. Ohio 1977); Texaco Trinidad v. Astro Exito
Navegacion §.A., 437 F. Supp. 331, 333-34 (S. D. N. Y.
1977); Fitzgerald v. Texaco, Inc., 521 F. 2d 448, 453 (2d
Cir. 1975).
The Plaintiff by brief and at oral argument asserted
that the Defendants should be estopped from seeking dis-
missal of this action on forum non conveniens grounds.
No cases are cited in support of that proposition and we
believe that is a sufficient indicator of the merit of that
argument. Plaintiff argues that since the case has been
transferred once before and for the reasons stated by De-
fendants in their briefs that they should now be estopped
from arguing that the Middle District is not a proper
forum. A reading of the briefs filed by Plaintiff in response
to the transfer motion, in accordance with this argument,
would lead us to conclude that Plaintiff should be estopped
A88 District Court Memorandum
from raising this argument. The papers filed concerning
the motion to transfer are, of course, irrelevant to the ques-
tion we have decided. They were filed early on in this
proceeding before many of the important facts of this
case were uncovered. Also, Defendants should not be
punished for their failure to file a motion to dismiss for
forum non conveins first, instead of the motion to trans-
fer. If they would have filed such a motion we feel sure
that the California district court would have likewise dis-
missed this action.
The action will be dismissed on the conditions that
the Defendants waive any defense that they might have
relating to any statute of limitations that did not exist prior
to the initiation of this suit and that they abide by their
stipulation to submit to the jurisdiction of the Scottish
courts.
An appropriate order will be entered.
/s/ R. Dixon Henman
R. Dixon Herman
United States District Judge
Daten: October 19, 1979
District Court Order A89
ORDER
Filed October 19, 1979
[Caption omitted in printing]
ORDER
Anp Now, this 19th day of October, 1979, in accord-
ance with the memorandum this day filed, Ir Is OnpErED
that this action be and is hereby dismissed on the ground
of forum non conveniens.
Ir Is Furruer Ornverep that the Defendants shall
waive any statute of limitation defense that they may have
in the courts of Scotland and that they submit to the juris-
diction of the courts of Scotland as a condition to the above
ordered dismissal.
/s/ R. Drxon Herman
R. Dixon Herman
United States District Judge
A90 Affidavit of Scott (10/30/79)
AFFIDAVIT OF RONALD C, SCOTT AND
EXHIBIT “A” THERETO
Filed October 30, 1979
[Caption omitted in printing]
COMMONWEALTH OF PENNSYLVANIA } is
County OF PHILADELPHIA
Ronatp C. Scort, being first duly sworn deposes and
says:
Counsel for plaintiff has filed an Affidavit with this
Court bearing the date 8th of October, served upon this
defendant by mail on 16th October 1979 which contains
statements which, in the view of the affiant require cor-
rection upon the record.
The plaintiff's counsel’s Affidavit denies that the hear-
ing referred to in affiant’s last Affidavit was a trial, which
is a statement which would have caused considerable sur-
prise to the many barristers, solicitors and court officers
who spent three weeks in an Edinburgh courtroom trying
an appeal from the findings of the Department of Trade
investigators, of which the plaintiffs were notified and to
which they were invited to give evidence and participate.
It was a statutory trial under the United Kingdom Civil
Procedures Act and, within the meaning of the principles
of res adjudicata, an adversary proceeding. An oppor-
tunity was provided to the plaintiff to present all evidence
against the defendants. No evidence such as is referred
to by counsel for the plaintiff as having been discovered
by plaintiffs having sent investigators and experts to
Europe to examine the wreckage was ever referred to ex-
cept to the extent that the plaintiffs alleged experts suc-
ceeded in beguiling the British Department of Trade in-
vestigators into making the proven false findings they did
find.
Affidavit of Scott (10/30/79) A91
Plaintiff's attorney comments upon the authority cited
by your affiant. No comment is required to demonstrate
the emptiness of the comments other than a citation in
an official reporter of the case earlier cited, Dahl v. United
Technologies Corporation, which now appears at 472 F.
Supp. 696.
Finally, plaintiff's attorney cites and attaches to his
opinion the overruled finding of the Department of Trade
investigators and omitted to advise the Court that the
decision and findings had been found without foundation.
Attached hereto and made a part hereof as Exhibit “A”
is a true and correct copy of the advance copy of the ap-
pellate opinion of Lord Jauncey overruling the findings
to which plaintiff's counsel referred.
Very respectfully,
/s/ Ronawp C. Scorr
Ronald C. Scott
[jurat omitted in printing]
Affidavit of Scott (10/30/79)
Exhibit “A”
Review of the Aircraft Accident Report on the acci-
dent to Piper PA E 23 (AZTEC) Series 250 G-AYSF at
Moffat, Dumfriesshire on 27 July 1976.
Report before Mr C E Jauncey, QC, now The Hon
Lord Jauncey and Captain Duncan McIntosh, OBE AFC
Mr John Barker (Technical Assessors).
APPEARANCES
Mr C N McEachran, Ad- (Instructed by the Crown
vocate and Mr Robert Black Agent) appeared as Counsel
Mr C K Davidson, QC
Mr J A Cameron, Advocate
Mr Harvey Crush
Mr I R Hamilton, Advocate
on behalf of the Review
Board.
(Instructed by Messrs
Shepherd & Wedderburn,
WS) appeared for Hartzell
Propeller Inc.
(Instructed by Messrs
W & J Burness, WS)
appeared on behalf of
Avco-Lycoming Inc.
Of Messrs Norton, Rose,
(Instructed by Messrs Boyd
Jameson & Young, WS)
appeared on behalf of Air
Navigation and Trading
Company Limited.
Affidavit of Scott (10/30/79) A93
Mr A C M Johnston, Ad- (Instructed by Messrs
vocate Bonar, Mackenzie, WS)
appeared on behalf of the
Civil Aviation Authority.
Mr Scott Baker, QC (Instructed by Messrs
(of the English Bar) Hagart & Burn-Murdoch,
WS) appeared on behalf of
the Personal representatives
of the deceased pilot.
Mr D J D Macfadyen, Ad- (Instructed by the Solicitors
vocate Office, Department of
Trade) appeared on behalf
of the Accident Investiga-
tion Branch of the Depart-
ment of Trade.
Mr A D McKay of Messrs Patrick & James, WS appeared
at the Preliminary Hearing on behalf of McDonald Avia-
tion Limited but did not appear thereafter.
Mr J AD Innes of Messrs Dundas & Wilson, CS appeared
on behalf of the representatives of the deceased passengers
but asked leave to withdraw at an early stage in the
proceedings.
List or DOCUMENTS
Report dated 10 November 1977 on Engineering data
prepared by C A Protheroe, Inspector of Accidents.
Report dated 8 November 1976 with addendum dated
1 April 1977 prepared by D W Squire, Chief Engi-
neer, Engine Overhaul Department, CSE (Aircraft
Services) Limited.
Report dated 22 December 1976 on tests carried out to
determine rate of oil leak from propeller governor
prepared by Hants & Sussex Aviation Limited.
(W Dietz and D Jackson)
A94 Affidavit of Scott (10/30/79)
Report dated 10 November 1976 on fuel test prepared by
J Hughes for the Director of Materials Quality
Assurance, MOD.
Report dated 12 January 1977 on oil test prepared by
R F Tollervey for Director of Materials Quality
Assurance, MOD.
Report dated 29 October 1976 on parts of propeller con-
trol unit prepared by A Q D Laboratories. (Miss
J W Harris and Mr V H Cripps)
Flight Test Report dated 1 October 1976 and addendum
thereto prepared by D Cummings, Flight Test En-
gineer, Civil Aviation Authority, Airworthiness
Division.
Copy letter dated 27 October 1976 from J R W Smith,
Flight Test Engineer, Civil Aviation Authority, Air-
worthiness Division to Piper Aircraft Corporation.
Excerpt from Lycoming Operator's Manual.
Excerpt from Lycoming Parts Catalogue.
Excerpt from Tighening Torque Recommendations re-
ferred to in Lycoming Operator's Manual.
Report of LATCC FIR(N) Controller.
Flight Test Results by Mr Guinther for Hartzell.
Photographs.
Documents relating to Pilot's Aztec Training.
Engine Lubrication Diagram.
Letter from Pilot in Command of G-AYSF’s previous flight.
Technical Log Sheet of G-AYSF’s previous flight.
Aero-nautical Chart of Northern England.
Two Port Engine Log Books.
Port Propeller Log Book.
Affidavit of Scott (10/30/79) A9S
Piper Aircraft Corporation Flight Manual.
British Supplement to above Flight Manual.
McDonald Aviation Limited’s Training and Operator's
Manuals.
Certified Computer Print-out relative to reports concern-
ing Hamilton Standard or Hartzell Propeller Governor
Bolts or Nuts.
Port Engine Record.
Specification of C.S.U. Fixing.
Extract from Lycoming Operator's Manual.
Large Engine Drawing.
Copy Lycoming Service Letter.
Lycoming Engine Overhaul Manual.
Mr Light’s Friction Horsepower Calculation.
C.A.A. Flight Test of G-AYSF.
C.A.A. Flight Test Schedule No. 3.
Drift Down Time Calculations for G-AYSF.
Three N.A.T.S. Radiotelephony Transcripts.
PRELIMINARY .
Accident
1 During a charter flight from Blackpool to Perth on
27 July 1976 a Piper PA E 23 (Aztec) Series 250—G-
AYSF struck a hill approximately 2,500 feet amsl. some 7
nautical miles north east of Moffat, Dumfriesshire at about
1756 hrs. The aircraft was destroyed by fire and the pilot
and five passengers were killed. The flight in question
was the return leg of a flight which had originated that
morning at Perth in a Piper Aztec aircraft owned and
operated by McDonald Aviation Limited although the
A96 Affidavit of Scott (10/30/79)
pilot was employed by Tayside Aviation Limited. The
aircraft in which the flight commenced became unservice-
able at Blackpool and the pilot obtained a substitute air-
craft from Air Navigation and Trading Company Limited.
The circumstances in which authorisation was granted by
McDonald Aviation Limited to the pilot to effect this
change were not disclosed. The aircraft G-AYSF had
returned to Blackpool from Leeds under the command of
another pilot shortly before the final take-off for Perth.
Investigation
2 The Chief Inspector of Accidents ordered Mr. West-
lake, a Principal Inspector of Accidents to carry out an
investigation into the accident. Mr. Westlake commenced
the investigation with the assistance of Mr. Cairns, an
Operations Inspector and Mr. C A Protheroe, an Engi-
neering Inspector. Mr Westlake retired before the investi-
gation was completed and Mr Cairns subsequently died.
Mr P J Bardon thereafter became Principal Inspector
and completed preparation of the report for submission
to the Secretary of State for Trade. A copy of the pro-
posed report was, pursuant to regulation 11, served upon
Hartzell Propellers Inc, inter alios.
3 Hartzell Propeller Inc (hereinafter referred to as
“Hartzell” ) gave notice that they wished the findings and
conclusions in the report to be reviewed by a Review
Board under Regulations 12 and 13.
Proceedings of Review Board
4 On 9 October 1978 a Preliminary Meeting was held
at which directions were given for the preparation and
conduct of the Review.
5 At that meeting the following parties were granted
leave to appear at the Review under Regulation 13(7):
Affidavit of Scott (10/30/79) AQT
Piper Aircraft Corporation
McDonald Aviation Limited
Air Navigation and Trading Company Limited
The Civil Aviation Authority
The representatives of the deceased passengers
The representatives of the deceased pilot
The Accident Investigation Branch of the Depart-
ment of Trade.
6 On 15 November 1978 Captain Duncan McIntosh,
OBE AFC (Pilot Assessor), Mr John Barker (Engineer-
ing Assessor) and I visited the Royal Aircraft Establish-
ment at Farnborough in order to see the wreckage of the
aircraft laid out in a hanger.
7 The Review Board sat in the Land Court, Edin-
burgh to hear evidence and submissions on nine days:
4, 5, 6, 7, 8, 11, 12, 13 and 14 December 1978.
8 Oral evidence was given by:
Mr R F Tollervey, Higher Scientific Officer of the
Materials Quality Assurance Directorate of the
Ministry of Defense.
Mr D W Squire, Chief Engineer of C.S.E.
Aircraft Services Ltd.
Mr J R W Smith, Flight Test Engineer, Civil Avia-
tion Authority.
Mr C A Protheroe, Inspector of Accidents.
Mr P J Bardon, Principal Inspector of Accidents.
Mr W B Harlament, Chief Engineer, Hartzell Propel-
ler Inc.
Mr J Bailey, Vice President of Aerospace Manage-
ment Services International.
A98 Affidavit of Scott (10/30/79)
Mr W M Guinther, Pilot Instructor.
Mr V H Cripps, Senior Technical Officer, A.Q.D.
Laboratories, Harefield.
Mr A E Light, Vice President Engineering, AVCO
Lycoming Division, Lycoming Corporation.
Mr C F Wilson, Director of Engineering, Piper Air-
craft Corporation.
Mr P E Reeve, Pilot Instructor.
Mr H Best Devereux, Consulting Aero-nautical Engi-
neer,
Facts and Conclusions
9 In the absence of any RTF transmission from the
aircraft indicating distress or emergency, and in view of
the extensive fire damage which occurred after impact
the Inspectors were forced to build up, so far as they
could, from the material available a probable reconstruc-
tion of the circumstances of the accident. Mr Protheroe,
who was principally concerned with this reconstruction
and who was present at the locus before the wreckage was
removed concluded that distribution of the wreckage and
the damage sustained by the seat frames and fuselage
frames pointed towards a spin-type impact in which the
aircraft had a high rate of descent with little forward
speed. This conclusion was broadly accepted by all the
parties present at the Hearing. Mr Protheroe also found
the following facts which appeared to him to be of par-
ticular significance:
(1) A dent in the leading edge of one blade of the
port propeller and chordwise marks in the vicinity
of the dent.
Affidavit of Scott (10/30/79) Ag9
(2) Damage to the underside of the port spinner in
contrast to more general damage to the starboard
spinner.
(3) Witness marks in the propeller cylinder assembly.
(4) The position of the port engine control cables in
the cockpit which was similar to that in which
they would have been if the pilot had taken ac-
tion to shut down the port engine.
(5) The latches in the port propeller cylinder assem-
bly which retain the propeller close to the fine
pitch stop were all wholly or partially engaged.
(6) All four nuts securing the port propeller governor
unit were loose and a 10 thousand feeler gauge
could be inserted between the mounting flange
and the crankcase.
(7) There was a quantity of oil distributed on the
inside of the upper panel of the port engine
cowling.
10 From these facts Mr Protheroe reached the fol-
lowing conclusions which were accepted by Mr Bardon:
(1) that the Governor Unit had become loose before
impact with a consequential leak of oil there-
from;
(2) that for some reason, probably because he be-
came aware of the oil leak, the pilot attempted
to shut down the port engine;
(3) that he was unable to feather the propeller be-
cause windmilling r.p.m had fallen unusually
quickly below the minimum r.p.m. at which fea-
thering was possible; and
A100 Affidavit of Scott (10/30/79)
(4) that this rapid decay of r.p.m. was due to in-
creased friction in the engine consequeat upon
the loss of oil from the Governor Unit.
11 It was around these conclusions that the principal
dispute took place.
Governor Unit
12 If the Governor Unit was loose before impact
there can be no doubt that it could only have been as loose
as it was found to be by Mr Protheroe for a very short
time. The rate of oil loss through the gap at a pressure of
300 p.s.i. was calculated to be 2.7 imp. pints per minute
which would have emptied the sump in a few minutes
and this had not occurred. In reaching the conclusion
that the Governor Unit had become loose before impact
Mr Protheroe relied on the examination of the studs which
secured it to the crankcase, which examination had been
carried out by AQD Laboratories and on the amount of
oil found on inside of the cowling. There was, however,
some doubt as to the extent of that examination. Mr
Protheroe thought that the threads in the light alloy cast-
ing of the crankcase which received three of the four steel
studs had been examined and found to be intact whereas
Mr Cripps who carried out the tests considered that no
such examination had been made since no mention thereof
appeared in the Test Report. He further considered that
distortion would be more likely to have occurred in the
light alloy casting than i
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