# Appendix — Piper Aircraft Co. v. Reyno > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 454 U.S. 235 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A02. Public record. Not legal advice.