Petition for Writ of Certiorari — Singh v. Pan American World Airways, Inc.

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

— Court, U.S.

‘ee Oe

98 907 nov 251998

a RP eee : aoe

= ee

Supreme Court of The United States

OVuetahare Tarr Toone

AJAY PATEL, et al.

Petitioners,

Vv.

PAN AMERICAN WORLD

AIRWAYS, INC., et al. l.

Respondents.

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

DANIEL C. CATHCART*

CLAY Rossins, III

ANN L. MEZZACAPPA

MAGANA, CATHCART & McCARTHY

Suite 810

1801 Avenue of the Stars

Los Angeles, California 90067-5899

(310) 553-6630

Attorneys for Petitioners Ajay Patel, et al.

*Counsel of Record

APPELLATE ADVANTAGE

4264 N. OAK TRAFFICWAY@KANSAS CITY, MO 64116@816-453-2424

SBEST AVAILABLE COPY

QUESTIONS PRESENTED

May the Second Circuit ignore this Court and

establish jurisdiction where no jurisdiction can exist

by re-examining and then ignoring the clear and

exhaustive analysis of this Court in Lexecon Inc. y

Milberg Weiss Bershad Hynes & Lerach, _ US. me

118S.Ct.956, 140 L.Ed.2d 62 ( 1998), and in so doing

allow a transferee court to decide a case where it has

no jurisdiction to do so under 28 U.S.C § 1407?

If, at the end of the pre-trial phase in a multi-district

litigation case, a transferee court lacks jurisdiction to

hear an action because it cannot assign a transferred

case to itself, may the Second Circuit nonetheless

circumvent the plain command of 28 USC § 1407

and sua sponte endow a transferee court with

“jurisdiction” by capriciously proclaiming that this

Court’s interpretation of the important interests

embodied in § 1407 should only be given prospective

application?

Did this Court intend that its holding in Lexecon Inc.

v. Milberg Weiss Bershad Hynes & Lerach, _ US.

- 118 $.Ct.956, 140 L.Ed.2d 62 (1998), delineating

the jurisdiction of transferee courts embodied in 28

U.S.C. § 1407, be given only prospective application?

In a claim for damages brought under the provisions

of the Warsaw Convention premised upon an airline's

willful failure to provide adequate security that

allowed an armed highjacking of an aircraft that killed

twenty passengers and injured scores of others, did the

District Court err in instructing the jury that Plaintiffs

were obligated to establish the airline’s willful ;

cooperation in the commission of the terrorist act in

order for Plaintiffs to obtain full recovery?

PARTIES TO THE PROCEEDINGS

Petitioners herein are AJAY PATEL, a minor, by and

through his Guardian ad Litem, PARVATI PATEL,

PARVATI PATEL; AVANI B. SHAH and RUPAL B.

SHAH, minors, by their Guardian ad Litem, BIPIN M.

SHAH: AISHA BEGUM: MEHBOOB KAHN; GAYATRI

DAVE and GARGI DAVE, minors, by their Guardian ad

Litem, VINOD DAVE; SANJAY PATEL, a minor, by and

through his Guardian ad Litem, C.N. PATEL; RANJANBEN

PATEL and JAYSHREEBEN PATEL, minors, by and

through their Guardian ad Litem, PRAVIN PATEL;

KHANJAN DALAL; KALPESH DALAL; DEEPALI

DESAI; NAGIN PATEL; TARA PATEL; SATISH PATEL;

GOVIND PATEL; CHOTUBHAI PATEL; JAMNA PATEL;

GANGA PATEL; DILIP PAREKH; FARAIDOON

OSHTORY; MANJULA S. PATEL, SANGITA PATEL,

NIKITA PATEL, Individually and as Heirs at Law to

Surendra Patel, Deceased; BAKUL SHAH; and FATHER

ANTHONY THEODORE, individually, (collectively, “the

Patel Petitioners and/or Patel Plaintiffs”). The Patel

Petitioners were Plaintiffs in the United States District Court

for the Southern District of New York and Appellants in the

proceedings in the United States Court of Appeals for the

Second Circuit.

Respondents, Pan American World Airways, Inc.

(“Pan Am’), a New York corporation, and Alert Management

(“Alert”), a Florida corporation, were Defendants in the

District Court and Appellees in the Court of Appeals.

ill

A connected and related Petition in this matter has

also been concurrently filed with this Court by Petitioners

Sadanand Singh, Individually and as Executor of the Estate of

Kala Singh, Deceased, Samir Singh, by and through Sadanand

Singh, Guardian ad Litem, and Kalpana Singh, by and

through Sadanand Sing, Guardian ad Litem (collectively, the

“Singh Plaintiffs”), who were also Plaintiffs in the District

Court and Appellants in the Court of Appeals.

TABLE OF CONTENTS

CHIBI te PURE iv yc sens cde n ev cccicedes

PARTIES TO THE PROCEEDINGS .............. ill

TARE COP Mar CEI cs io eo ce seedy ceeun Vil

CPT ee I os oo ke re ds he ES x

STATEMENT OF JURISDICTION .................&

TREATIES AND STATUTES INVOLVED ..........x

STAT ered Gi EER GE ov ec vb ae cde ccckas l

A. Pastel GGMIO coos nine hc cet c esr ieee’ l

B. Proceedings in the District Court ...............-.. 2

C. Proceedings in the Court of Appeals .............-. 3

a. Retroactive Applicability of Lexecon ........... 4

b. Causal Nexus Interpretation for

Establishment of Liability for

Willful Misconduct Under Article 25

of the Warenw Convention... ........2082-... 5

c. Finality of Second Circuit Decision ............ 6

REASONS FOR GRANTING WRIT ............-..- 7

I THE SECOND CIRCUIT OPINION

DIRECTLY CONFLICTS WITH THIS

COURT’S LEXECON HOLDING

CONFIRMING THE MANDATORY

DIRECTIVE OF 28 U.S.C. § 1407. ............ 7

I] THE SECOND CIRCUIT DISREGARDED

THE STANDARD OF ANALYSIS FOR

DETERMINING RESERVATION OF

RETRACT VES Bak icc cece issn tetennees 11

Il] INTERVENTION OF THIS COURT IS

REQUIRED TO CORRECT THE SECOND

CIRCUIT’S ERRONEOUS

INTERPRETATION OF THE REQUISITE

CAUSAL NEXUS TO ESTABLISH

LIABILITY FOR WILLFUL

MISCONDUCT UNDER ARTICLE 25 OF

THE WARSAW CONVENTION ............ 16

Ase UY Aik ook ces nde s de biehawe see eRe 23

APPENDICES

AER A RAI IN ETE YR ed via er Lar AA

Pianta 2 dadicvers * Le altettasts lhe beni! eas aie 7 mc hie

TABLE OF AUTHORITIES

Cases:

Aetna Cas. & Sur. Co. v. Liberty Mut. Ins. Co.,

9) & eS Slash, tess peers 21

Air France v. Saks,

gtk He oa. . 5 Reena ere wren 19, 20

American Trucking Ass'n, Inc. v. Scheiner,

ee ENT Ea re ks cs Si oe Sevek cen 12

B.C. Rogers Processors, Inc., et al. v. BOC

Group, Inc., et al.,__ U.S. _,

fo pia ec Pky | See rere pee 15, 16

Chevron Oil v. Huson,

ket bd) ee eee 5,9, 12, 14, 15

Davis v. Michigan Dept. of Treasury,

ge Se) ee yaar tr ae 12, 13

Eastern Airlines, Inc. v. Floyd,

gas Rl gt Rae ener sarang e. 20

Garner v. Memphis Police Dept.,

AB ET yt a . .) Seperee a aaere gore 8

Griffith v. Kentucky,

oo Gio BL” De, yg SARE eet wegen a gee 11

Harper v. Virginia Dept. of Taxation,

SUP U.S. G6 (59935) . «6505s. 9, 10, 11, 12, 13, 15

In re Korean Airlines Disaster of September 1, 1983,

ied ge 5 sf 5s ome A) | pa re 20

Vil

Insurance Co. of N. Am. vy. Liberty Mut. Ins. Co.,

1944 WL 150818 (S.D.N.Y. 1994) ........... 21

James B. Beam Distilling Co. v. Georgia,

SE EAs PLETE eos 60a oe OER EES 9

Landeros v. Flood,

ee RTE iS ss eK Cs oN ek ek 18

Lexecon Inc. v. Milberg Weiss Bershad

Hynes and Lerach,

we. 8 Qe yg) 9 7k ee Fh | enn passim

Red Ball Motor Freight, Inc. v. Employers Mut.

Liab. Ins. Co. of Wis.,

DF ee eee 6 IS i es eh aes: 21

Rosh v. Cave Imaging Systems, Inc.,

20 Ce Age FES CIPS) ooo inxs vanes 18

Shah v. Pan American World Services, Inc.,

[46 FSO SEr 6 Oe ss a us x

Transport Indemnity Co. v. W.D. Schnack, M.D.,

1St Coal Ape 56 149 CSR? iia seen haces 21

Tucker v. Sandlin,

SOe WC. Ae. FOC LISES) cos Se wes chess 18

Wooldridge v. Echelon Service Co.,

Fe UE: PLE OEE 5 hoe 45 st hee ee 18

Statutes:

United States Code

SE Ria SAE oo KS Goon oe Ce ea x

ee BUR 8 wae Pepe epg aae eer x1, 4, 10, 14

Oe a cnvaitnninicnidoaviniaiaailll

7 ,

ee BSR 8 eg Seg a ee err ie ae Bey 5

fe Gap tele. gern P eaens aie

Secondary Authorities:

Restatement (Second) of Torts

OE CRE: ova Se vo eS SN eee ko

eight ee Pe ee ES ETE CUO RS PERE: Poe

Treatises:

Horner & Legrez, Second International Conference

on Private Aeronautical Law Minutes,

(Warsaw 1929) 211, 213, 229 (1975) .....

The Convention for the Unification of Certain

Rules Relating to International Transport

By Air, Oct. 12, 1929,

49 Stat., part Il, p. 3000, TS No. 876 (1934),

reprinted in, 49 U.S.C.§ 40105 (1997)

(“The Warsaw Convention’’)

WEGEET Ei ee a ae

PETE Foo oe eee ee

RUE DE? oo Sos oo eee ees

Aste 35 5s ke xi, 5, 6, 16, 17, 19

/ 6 6 © he hme

ie 5 Fig 9

Viegas

pape

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

[his Petition seeks review of the opinion rendered

herein by the United States Court of Appeals for the Second

Circuit as reported at Shah v. Pan American World Services,

Inc., 148 F.3D 84 (2™ Cir. 1998). A copy of the opinion is

reproduced in Appendix A (Apdx. A-2 thru A-43). The

orders of the United States District Court for the Southern

District of New York are unreported. Copies of these

documents are reproduced in Appendix B (Apdx. B-44 thru

B-62).

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals for

the Second Circuit was filed June 15, 1998. A timely Petition

for Rehearing and Suggestion for Rehearing in banc was filed

June 29, 1998. On August 28, 1998, the Court of Appeals

entered its order denying the Petition for Rehearing and

Rejecting the Suggestion for Rehearing in banc. (Apdx. A-|

thru A-43.) The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

TREATIES AND STATUTES INVOLVED

The Convention for the Unification of Certain Rules

Relating to International Transport by Air, Oct. 12, 1929, 49

Stat., part II, p. 3000, TS No. 876 (1934), reprinted in, 49

U.S.C. § 40105 (1997) (“The Warsaw Convention’’).

Article 17 of the Warsaw Convention states:

The carrer shall be liable for damage

sustained in the event of the death or

Article

28 U.S.

wounding of a passenger or any bodily injury

suffered by a passenger, if the accident which

caused the damage so sustained took place on

board the aircraft or in the course of any of the

operations of embarking or disembarking.

24(1) of the Warsaw Convention states:

In the cases covered by articles 18 and 19 any action

for damages, however founded, can only be brought

subject to the conditions and limits set out in this

convention.

24{2) of the Warsaw Convention states:

In the cases covered by article 17 the provisions of the

preceding paragraph shall also apply, without

prejudice to the questions as to who are the persons

who have the right to bring suit and what are their

respective rights.

25 of the Warsaw Convention states:

The carrier shall not be entitled to avail himself of the

provisions of this convention which exclude or limit

his liability, if the damage is caused by his wilful [sic]

misconduct or by such default on his part as, in

accordance with the law of the court to which the case

is submitted, is considered to be equivalent to wilful

[sic] misconduct.

C.A. § 1404(a) states:

For the convenience of the parties and witnesses, in

the interest of justice, a district court may transfer any

civil action to any other district or division where it

might have been brought.

28 U.S.C.A. § 1407(a) states:

When civil actions involving one or more common

questions of fact are pending in different districts,

such actions may be transferred to any district for

coordinated or consolidated pretrial proceedings.

Such transfers shall be made by the judicial panel on

multidistrict litigation authorized by this section upon

its determination that transfers for such proceedings

will be for the convenience of parties and witnesses

and will promote the just and efficient conduct of

such actions. Each action so transferred shall be

remanded by the panel at or before the conclusion of

such pretrial proceedings to the district from which it

was transferred unless it shall have been terminated:

Provided, however, That the panel may separate any

claim, cross-claim, counter-claim, or third-party claim

and remand any of such claims before the remainder

of the action 1s remanded.

XII

Ne a Rp fens age it

eye hei, alt al Sab

STATEMENT OF THE CASE

A. Factual Background

This Petition concerns claims arising from the tragic

terrorist hijacking of Pan Am Flight 73 in Karachi, Pakistan,

that led to twenty deaths and numerous other injuries. The

Patel Plaintiffs are passengers who were injured, or heir

representatives of passengers who were killed, as a result of

the hijacking. The claims brought by the Patel Plaintiffs

emanate from and are related to the willful misconduct of Pan

Am.

In 1986, Pan Am publicly announced the creation of

the Alert program which was designed to establish and

implement extraordinary security measures to deal with

terrorism at airports worldwide used by Pan Am.

Additionally, prior to the hijacking, Pan Am began charging

a security surcharge of $5.00 on each one-way ticket, or

$10.00 on each round-trip ticket on transatlantic routes to pay

for the added security measures.

The Pan Am Flight 73 passengers suffered loss of life

and serious personal injuries on September 5, 1986 at Karachi

International Airport, Karachi, Pakistan. Despite its improved

security advertisements and fare surcharges, Pan Am never

provided additional security in Karachi after the security

surcharge began being collected in April 1986, and terrorists

were permitted to drive through an open cargo gate, take

control Pan Am’s Flight 73 aircraft, imprison its passengers

for some seventeen hours, and then attack them with machine

guns and hand grenades.

B. Proceedings in the District Court

In 1987 and 1988, several individual constituent

actions were filed against Pan Am for damages for personal

injunes and for property damage alleging negligence, willful

misconduct, and breach of contract, in the Superior Court of

the State of California, United States District Court, Central

District of California, United States District Court, Southern

District of California, and the United States District Court,

Southern District of New York.

On May 6, 1987, these actions were transferred by the

Judicial Panel on Multidistrict Litigation (“JPML”) to the

Southern District of New York (“SDNY”) for consolidated

pre-trial discovery and motion proceedings, only, under 28

U.S.C. § 1407. Upon completion of pre-trial proceedings, the

SDNY was statutorily required to transfer the actions back to

the JPML. Instead of complying with the plain command of

the § 1407 transfer mandate, the SDNY transferred all of the

actions to itself and consolidated said actions for trial in that

court pursuant to its Order entered December 13, 1993, over

the objection of the Patel Plaintiffs. (Apdx. C-63 thru C-68.)

The Patel Plaintiffs’claims against Pan Am were tried

before a jury, the Honorable John E. Sprizzo, District Judge

presiding, during March and April of 1994. Since the

horrific incident occurred during international air travel, the

provisions of the Warsaw Convention governing liability

were applicable. While the Warsaw Convention provisions

establish a limitation on strict liability damages assessable

against an airline carrier for international aviation incidents,

if Plaintiffs’ injuries and damages were caused by the willful

misconduct of Pan Am, the Convention damages limitation

cap would be deemed inapplicable.

The jury rendered its liability special verdict against

Pan Am on April 14, 1994, finding that while Pan Am had

engaged in wiilful misconduct in connection with the Alert

program, "s willful misco t had

caused the hijacking. Integrally, the jury did not address

whether the willful misconduct of Pan Am had caused the

Patel Petitioners’ injunes and damages.

On March 27, 1997, nearly three years after the jury

verdict had been rendered, Judgment was entered in favor of

the Patel Plaintiffs limiting the amount of their damages

pursuant to the Convention provisions. (Apdx. B-44 thru B-

62.)

Cc. Proceedings in the Court of Appeals

Timely Notices of Appeal were filed on April 24 and

April 28, 1997 by the Pate/ Plaintiffs.' The issues presented

for review fundamentally pertained to whether an incorrect

standard of “causation” was used at trial in that the District

Court had instructed the jury to determine whether the willful

misconduct caused the hijacking rather than allowing the

hijacking to occur, from which Plaintiffs’ injuries and

I Timely Notices of Appeal were also filed by the Singh

Plaintiffs, and the Patel Plaintiffs timely joined in the critical

“causation” issues presented for review by the Singh

Piaintiffs.

damages arose. Additionally, review was sought as to

whether the trial judge’s misconduct in questioning Plaintiffs’

security expert went to the issue of causation supporting a

finding of prejudicial judicial misconduct.

a. Retroactive Applicability of Lexecon

Pivotally, while the Appeal was still pending in the

Second Circuit, this Court decided Lexecon Inc. v. Milberg

Weiss Bershad Hynes & Lerach, __ U.S. _, 118 S.Ct.956,

140 L.Ed.2d 62 (1998), and accordingly, retroactive

applicability of Lexecon became a threshold issue in the

Court of Appeals. The Patel Plaintiffs and Singh Plaintiffs

both explicitly argued on Appeal that when the SDNY

invoked § 1404(a) (change of venue) to assign this JPML

transferred action to itself, the SDNY’s self-assignment was

in direct conflict with this Court’s Lexecon mandate directing

that a district court conducting pretrial proceedings in

multidistrict litigation pursuant to 28 U.S.C.A. § 1407(a) has

no authority to invoke § 1404(a) (change of venue) to assign

a transferred case to itself for trial. Plaintiffs further argued

on Appeal that Lexecon was indeed “retroactively” applicable

to this action which was still on direct review.

While the Second Circuit unequivocally recognized

this Court’s Lexecon directive, it nonetheless affirmed the

SDNY self-assignment transfer in this action by opining that

the rule in Lexecon did not apply retroactively since this

Court purportedly “reserved the question of whether its

holding would be applied to the parties before it."’ (Apdx. A-

13 thru A-17 [Opinion at 13-16].) In effect, the Second

Nie Sot

eee ee a

Circuit determined that this Court’s Lexecon ruling reversed

longstanding practice and that retrospective application would

frustrate the essential purpose of the statute providing for

transfer of cases for consolidated pretrial proceedings, i.e., to

promote the just and efficient conduct of complex

multidistrict litigation. Instead, the Second Circuit

erroneously engaged in a Chevron Oil vy. Huson, 404 U.S. 97

[92 S.Ct. 349, 30 L.Ed.2d 296] (1971) analysis in an effort to

justify the SDNY’s erroneous se!f-transfer.

b. Causal Nexus Interpretation for Establishment

of Liability for Willful Misconduct Under Article 25 of the

Warsaw Convention

In addressing Plaintiffs’ arguments that the SDNY had

used an incorrect standard of causation at trial, Circuit Judge

John Walker Jr., affirming the SDNY’s standard of causation

for fraud-based claims under the Warsaw Convention, stated

that the issue was one of first impression and proceeded to

establish an unprecedented and insurmountable causation test

for claims asserting willful misconduct. (Apdx. A-24 thru A-

25 [Opinion at 23-24].) Essentially, the causation test

fostered by Judge Walker would require that the injured

claimant seeking compensation under the Warsaw

Convention where there has been willful misconduct on the

part of an international air carrier, must establish a direct,

actual participation by the air carrier in the injury producing

act. (Apdx. A-21 thru A-32 [Opinion at 20-31].)

In imposing such a restrictive causal nexus test, Judge

Walker virtually forecloses the ability of any claimant to

establish a criminal act could have been precluded by the air

carrier under the Convention, and contorts the operative

language of the official French text of Article 25 of the

Convention, fo wit: the difference between damage “arising

out of the willful misconduct” versus damage “caused by

willful misconduct."’ Rather, if a claimant is able to establish

a reasonable relationship between the willful act, error,

omission, and/or misrepresentation on the part of the air

carrier that then allowed the commission of an intentional or

criminal act by another, resulting in injury to passengers, then

the burden should be shifted to the air carrier to show that its

willful misrepresentation did not participate in setting the

stage for the injury producing event.

c. Finality of Second Circuit Decision

Petitions for Rehearing and Suggestion for Rehearing

in banc were timely filed by the Pate/ and Singh Plaintiffs,

respectively and concurrently. The Patel and Singh Plaintiffs

respectfully petitioned the Second Circuit panel for a

rehearing and reconsideration of its Opinion given the direct

conflict with this Court’s Lexecon holding and controlling

case law on the analysis to be employed in determining

“express reservation” of retroactivity by this Court, as well as

incorrect application of controlling case law regarding the

underlying analysis and conclusions reached on critical

Causation issues. In furtherance of Plaintiffs’ Lexecon

“retroactive application” contentions, the Petition for

Rehearing also respectfully requested that the Court of

Appeals’ panel take judicial notice of two (2) Orders filed in

Lexecon after remand for further proceedings consistent with

the opinion rendered by this Court.. These Orders

demonstrably establish that this Court did not reserve the

question whether its holding should be applied to the parties

before it in Lexecon given that no subsequent proceedings on

remand were held as to retroactivity in that matter, and there

was direct referral of the case to the JPML consistent with this

Court’s ruling therein.

By way of its Order filed August 28, 1998, the Second

Circuit denied said Petition for Rehearing, and it was further

noted that the Suggestion for Rehearing in banc had not been

requested by any judge for the Court in regular service or any

judge that heard the appeal, and that no such judge had

requested that a vote be taken thereon. (Apdx. A-1.)

REASONS FOR GRANTING THE WRIT

THE SECOND CIRCUIT OPINION DIRECTLY

CONFLICTS WITH THIS COURT’S LEXECON

HOLDING CONFIRMING THE MANDATORY

DIRECTIVE OF 28 U.S.C. § 1407.

The Second Circuit’s attempt to devise a basis upon

which to accord deference to what was unquestionably a

longstanding practice of self-assignment in JPML cases, is

nevertheless in direct conflict with this Court's Lexecon

observation that the straightforward imperative or command

established by the statutory language employed in 28 U.S.C.

§ 1407 "creates an obligation impervious to judicial

discretion,” and consequently entails the invalidity of self-

assignment power in a transferee court. Lexecon, supra, 118

S.Ct. at 962, 964. Hence, the genesis of Lexecon's

authoritative fiat:

“{T]he plain command of a statute should be given

effect ‘even if doing that will reverse the longstanding

practice under the statute and the rule.'[/d. at 962

(citation omitted). |”

The Second Circuit is not free to reexamine this

Court's Lexecon ruling and reach a different conclusion. C./,,

Garner v. Memphis Police Dept., 8 F.3d 358, 362 (6th Cir.

1993). Indeed, while this Court acknowledged in Lexecon that

broader district court authority to transfer cases might be

desirable, "the proper venue for resolving that issue remains

the floor of Congress," not an Opinion such as that rendered

by the Second Circuit in this action. [Emphasis added;

Lexecon, supra, 118 S.Ct. at 964. |

Accordingly, the SDNY, as a transferee court

conducting pretrial proceedings, had no authority to self-

assign this multidistrict proceeding for trial. It is axiomatic

that "the §1407(a) mandate would lose all meaning if a party

who continuously objected to an uncorrected categorical

violation of the mandate,” such as all Plaintiffs did in this

action, “could obtain no relief at the end of the day." /d. at

965-66.

In determining whether Lexecon was to be applied

retroactively to this case, the Second Circuit indeed

acknowledged the controlling general principle of law

pertaining to retroactive effect, as enunciated by this Court in

Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97, 113

S Ct. 2510, 125 L.Ed.2d 74 (1993), reflecting the majority

position in James B. Beam Distilling Co. v. Georgia, 501 U.S.

$29, §39-43, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991):

“When [this Court] applies a rule of federal law to the

parties before it, that rule is the controlling

interpretation of federal law and must be given full

retroactive effect in a'l cases still open on direct

review and as to all events, regardless of whether such

events predate or postdate our announcement of the

rule.”

However, the Second Circuit then improperly

surmised that: a.) Lexecon was a case where this Court

purportedly explicitly reserved the question of whether its

holding should be applied to the parties before it; b.)

retroactive application of Lexecon was not therefore required

in this case; and c.) instead, application of the three-pronged

Chevron Oil test was permissible. (Apdx. A-13 thru A-

17{Opinion at 13-16].)

In so doing, the Second Circuit falls victim to the

same flawed effort to distinguish controlling decisional law

emanating from this Court as that attempted in Beam and by

the Virginia state high court in Harper, which this Court has

historically rebuffed. Harper, supra, 509 U.S. at 98-99;

Beam, supra, 501 U.S. at 539-40.

The conclusion that this Court intended its Lexecon

holding to be applied to the parties before it is compelled by

the reasoning of Harper, supra, 509 U.S. at 91-99, which

gave controlling effect to the revised rules concerning implied

retroactivity jurisprudence announced in Beam, supra, 501

U.S. at 539-40, as discussed further herein.

Moreover, the Second Circuit critically misstates the

tenor of Lexecon footnote 5 in mounting its challenge to

retroactive application of Lexecon to this action. The subject

footnote clearly pertains to an untimely argument raised by the

Lexecon respondents as to prospective application of any

decision rejecting a transferee court's practice of ruling on

§1404 transfer motions. The subject footnote does not meet

the threshold requisites mandated for a determination that this

Court expressly and explicitly reserved the issue of

retroactivity as to the parties before it. Rather, the subject

footnote unequivocally establishes that this Court found it

"unnecessary...to consider" the untimely suggestion. It is,

therefore, incongruous for the Second Circuit to surmise that

this footnote established that this Court explicitly reserved the

issue of retroactivity as to the Lexecon litigants.

Hence, the Second Circuit’s Opinion is contrary to, as

well as in direct conflict with, controlling case law and

disregards the requisite standard of analysis to be employed

in determining reservation by this Court of the retroactivity

question under the "express reservation test.”

mt cveaicecentisostca welll

THE SECOND CIRCUIT DISREGARDED THE

STANDARD OF ANALYSIS FOR

DETERMINING RESERVATION OF

RETROACTIVITY.

This Court in Harper, supra, 509 U.S. at 97-99,

followed the Beam retroactivity analysis (as quoted

hereinabove — the so-called "pipeline doctrine"), which

extended in a "civil context" the Griffith v. Kentucky, 479 U.S.

314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ban against

"selective application of new rules." Thus, selective temporal

barriers to the upplication of federal law in both civil and

criminal cases is prohibited. Id. at 97.

Beam instructs that retroactivity is the general rule of

constitutional jurisprudence. Beam, supra, 501 U.S. at 543.

Indeed, Beam exemplifies the ultimate refinement of the

"pipeline doctrine" aimed at securing equality for all claims

pending or capable of being litigated when the new rule iS

announced.

Harper, under the aegis of Beam, concludes that when

the "Court does not 'reserve the question whether its holding

should be applied to the parties before it,...an opinion

announcing a rule of federal law 'is properly understood to

have followed the normal rule of retroactive application’ and

must be ‘read to hold...that its rule should apply retroactively

to the litigants then before the Court’." Harper, supra, 509

U.S. at 97-98.

Thus, the rule derived from Beam and Harper, the

“express reservation test,” 1s clear. When this Court remands

a case, unless it explicitly reserves the issue of retroactive

application of that case, the normal rule of retroactivity is

assumed. Tellingly in this regard, this Court in Beam, supra,

501 U.S. at 539-40, cited in pertinent part the following

precise, explicit language utilized by the Court in American

Trucking Ass'n, Inc. v. Scheiner, 483 U.S. 266, 297-98, 107

S.Ct. 2829, 97 L.Ed.2d 226 (1987), as an exemplar of the

requisite type of Statement upon which a court may properly

opine that the Supreme Court has expressly reserved the

question whether its holding should be applied to the parties

before it:

“Appellees request that in the event of an adverse

decision, the Court remand the case...to consider

whether the ruling should be applied retroactively and

to decide other remedial issues. We agree....”

[Emphasis added to reflect the Beam excerption. }

Consequently, unless such an explicit, precise

statement of reservation is expressed in an opinion rendered

by this Court, it is error to assert that there has been a

reservation of the question of retroactivity and refuse to apply

a rule of federal law retroactively after the case announcing

the rule has already done so. Beam, supra, 501 U.S. at 540.

In Harper, the Virginia state high court also attempted

to apply the three-pronged Chevron Oil test in deciding the

retroactivity issue presented by that litigation. Harper, supra,

509 U.S. at 97. In an effort to distinguish this Court's opinion

rendered in Davis v. Michigan Dept. of Treasury, 489 U.S.

803, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), the Virginia

state high court, surmised, that this Court had "made

no...ruling" about the application of the rule announced in

Davis "retroactively applying to the litigants in that case."

Harper, supra, 509 U.S. at 98.

To the contrary, this Court resoundingly disagreed

holding that there was no requisite express and explicit

language or statement reserving the retroactivity question in

Davis, and cogently explained that any "consideration of

remedial issues" means "necessarily" that this Court

"retroactively applied" the rule announced in an opinion to the

litigants before it. [/d. at 98-99, citing in pertinent part the

opinion delivered by Justice Souter in Beam, supra, 501 U.S.

at 539-40, which reflected the majority view of the Court

therein.7]

In the instant action, the Second Circuit’s surmise at

p. 13 of the Opinion, is essentially identical to the flawed

surmises in Harper and Beam. To mount its challenge to

retroactive application of this Court's Lexecon holding, which

unequivocally would have compelled remand of this matter to

the district from which it was transferred pursuant to 28

U.S.C. § 1407, thereby rendering nugatory the trial court

judgment, the Second Circuit improperly focused on an

incidental footnote reference in Lexecon which has no bearing

on the retroactive application of the holding premised on 28

2 Notably, Justice Souter also delivered the opinion of the

Court in Lexecon.

U.S.C. §1407 as to the parties therein. This footnote states as

follows:

“In their brief to this Court, Milberg suggests that any

decision rejecting multidistrict litigation courts’

practice of ruling on $1404 transfer motions should

be applied prospectively under Chevron Oil Co. v.

Huson, 404 U.S. 97, 106-107, 30 L.Ed.2d 296, 92

S.Ct. 349 (1971). Because this argument was not

presented below, see Brief for Milberg Defendants in

No. 95-16403, et al. (CA 9), or to this Court when

Milberg opposed petitioners' petition for certiorari, see

Brief in Opposition for Respondents Milberg et al., it

is unnecessary for us to consider it here. {Emphasis

added; Lexecon, supra, 118 S.Ct. at 965 n. 5.]”

Firstly, the Second Circuit critically misstated the

tenor of Lexecon footnote 5. The subject footnote language

is not tantamount to an express reservation as suggested in the

Opinion at p. 13, and clearly, given a plain reading of its

meaning, does not meet the threshold requisites of

explicitness and preciseness mandated under the "express

reservation test” as discussed hereinabove. Beam, supra, 501

U.S. at 540. The footnote is merely a rejection by this Court

of an untimely suggestion. Indeed, the "remand" language

utilized by this Court in "concluding" the Lexecon opinion

does not manifest any reservation of the question whether its

holding should be applied to the parties before it.

It is therefore, incongruous for the Second Circuit to

utilize the subject footnote in its attempt to justify the surmise

that this Court reserved the question of whether its Lexecon

holding premised on 28 U.S.C. § 140 7 applied to the Lexecon

litigants before it.

Secondly, the remedial question was unquestionably

considered in the unanimous Part III section of this Court's

Lexecon opinion, which specifically begins with the

Statement: "The remaining question goes to the remedy."

Meaning, therefore, that this Court "necessarily retroactively

applied" the rule announced in an opinion to the litigants

before it. Harper, supra, at 509 U.S. at 98-99.

Accordingly, based on a proper reading of Lexecon

footnote 5, as well as an appropriate analysis under the

“express reservation test" and affording due deference to the

remedy consideration paradigm espoused by Justice Souter in

Beam, engaging in a Chevron Oil analysis was foreclosed in

this case, for as Harper, supra, 509 U.S. at 98 instructs:

“[T]he legal imperative 'to apply a rule of federal law

retroactively after the case announcing the rule has

already done so' must 'prevai[l] over any claim based

on a Chevron Oil analysis.' [Emphasis added; citing

Beam, supra, 501 U.S. at 540, opinion of Souter, J.}”

Finally, it is respectfully submitted that this Court

expressly reaffirmed its Lexecon holding was to be afforded

retrospective application in granting petition for a writ of

certiorari, vacating judgment, and remanding the matter of

B.C. Rogers Processors, Inc., et al. v. BOC Group, Inc., et al.,

_ U.S. _, 118 S.Ct. 2365, 141 L.Ed.2d 732 (1998):

“{TJo the United States Court of Appeals for the

Eleventh Circuit for further consideration in light of

Lexecon....”

Like, the action herein, B.C . Rogers was on appeal in

the Eleventh Circuit at the time that this Court rendered its

holding in Lexecon, as State of Florida v. Liquid Air, 136

F.3d 139 (11th Cir. 1998), vacated, remanded sub nom., B.C.

Rogers Processors v. BOC Group, supra, 118 S.Ct. 2365.

Accordingly, it is respectfully submitted that this matter also

be remanded by this Court for appropriate application of the

Lexecon mandate.

iil

INTERVENTION OF THIS COURT IS

REQUIRED TO CORRECT THE SECOND

CIRCUIT’S ERRONEOUS INTERPRETATION

OF THE REQUISITE CAUSAL NEXUS TO

ESTABLISH LIABILITY FOR WILLFUL

MISCONDUCT UNDER ARTICLE 25 OF THE

WARSAW CONVENTION.

The opinion of the Second Circuit Court of Appeal

has imposed an unprecedented and insurmountable burden on

claimants seeking compensation under Article 25 of the

Warsaw Convention where there has been willful misconduct

on the part of an international air carrier. In essence, where

there has been a clear misrepresentation by an air carrier

regarding security that has been relied upon by a claimant to

his or her detriment, Judge Walker, and the Second Circuit,

stand alone in requiring that the injured claimant establish an

actual, direct participation by the air carrier in the injury

producing act before the claimant would receive the benefit

of Article 25. Such a “causation test” standard is without

support both in the language of the Convention itself. as well

as the precedential body of case law interpreting the

Convention.

Indeed, the Second Circuit’s interpretation of the

requisite causal nexus, particularly, where inadequate security

has resulted in a criminal act producing injury to passengers,

is simply unworkable and fundamentally unfair. It cannot

reasonably be urged that the drafters of the Convention

intended the imposition of such a restrictive nexus, and most

certainly not in the context of claims where liability arises

from willful misconduct which has allowed others to commit

a negligent or criminal act, causing injury.

It is respectfully submitted that the appropriate gauge

by which to measure causation within the context of liability

under Article 25 for a criminal act arising out of willfully

inadequate security, as weli as misrepresentations pertaining

thereto, is whether it was reasonably foreseeable to the air

carer that passengers would rely upon the misrepresentations

of security in choosing that particular carrier and that injuries

would result from security procedures that were not as

represented. Where a claim is premised upon criminal or

intentional conduct on the part of a third person, the

appropriate standard to determine the air carriers’

“responsibility” for that criminal act is whether its act, error,

omission, Or misrepresentation is reasonably related to

facilitating the attack that caused the injuries sustained.

This interpretation of causation is not without

precedent:

“If the likelihood that a third person may act in a

particular manner is . . .one of the hazards which

makes the actor [culpable] . . .. such an act whether

innocent, negligent, intentionally tortious or criminal

does not prevent the actor from being liable for the

damage caused thereby.”

(Rosh v. Cave Imaging Systems, Inc., 26 Cal.App.4th 1225,

1236 [32 Cal.Rptr.2d 136, 141] (1994), quoting from

Restatement (Second) of Torts $449; accord: Landeros vy.

Flood, 17 Cal.3d 399, 411 [131 Cal.Rptr. 69, 551 P.2d 389,

395] (1976); Tucker v. Sandlin, 126 Mich.App. 701, 704-705

[337 N.W.2d 637, 639-640] (1983) ; Wooldridge v. Echelon

Service Co., 243 Va. 458, 461-462 [416 S.E.2d 441, 443-444]

(1992) .)

That “reasonable relationship” would not require

participation on the part of the air carrier in the third party

criminal act. Neither would it require that the claimant

establish the event could not have occurred “but for” the

willful misconduct of the air carrier. Rather, the injured

passengers and claimants, in this case, should have been

called upon to show that the willful misrepresentation

concerning, and the ultimate inadequateness in, the security

provided by the air carrier was “a substantial factor” in

creating an environment whereby the criminal act and injury

therefrom was reasonably foreseeable. Rosh v. Cave Imaging

ne wept homie

Systems, Inc., supra, 26 Cal.App.4th at 1235 [32 Cal. Rptr.2d

at 141].

It is respectfully submitted that, contrary to the

opinion of the Second Circuit, such a standard is

contemplated by the Convention. The official French text of

Article 25 reads: “si Je dommage provient de son... .” That

does not translate to “if the damage is caused by.” Correctly

translated, the official French text of Article 25 would read:

“if the damage arises out of the willful misconduct.” The

drafters of the Convention knew how to say “cause” when

that is what was intended. For example, the operative

language of the official French text of Article 17 1s “cause le

dommage,” and the corresponding language of the American

translation is “caused the damage.” This suggests that

contrary to the conclusion of the Second Circuit, the drafters

of the Convention understood “arises out of’ to mean

something different than “caused by.™

3 See, e.g. , Robert C. Horner & Didier Legrez, Second

International Conference on Private Aeronautical Law Minutes,

(Warsaw 1929) 211, 213, 229 (1975) (“The carrier shall not have

the nght to avail himself of the provisions of the present Convention

which exclude or limit his lability, if the damage arises out of the

willful misconduct. . .”) (Emphasis added. )

4 In Air France v. Saks, 470 U.S. 392, 398 (1985) this

Court recognized the interpretive significance of the drafters’ use of

different words in different articles of the Convention: “This

difference in the parallel language of Articles 17 and 18 implies that

the drafters of the Convention understood the word ‘accident’ to

mean something different than the word ‘occurrerc-.” for they

It would be nearly impossible for a claimant to

establish a third party criminal act would have been precluded

by the air carrier. However, if the claimant 1s able to establish

a reasonable relationship between the willful act, error,

omission, and/or misrepresentation on the part of the air

carer that then allowed the commission of an intentional or

criminal act resulting in injury to passengers, then the burden

should be shifted to the air carrer to show that its willful

misrepresentation did not participate in setting the stage for

the injury producing event.

Although each member of the Warsaw Convention

may have its own transiation, there is only one official version

which controls all questions of interpretation. /n re Korean

Airlines Disaster of September ], 1983, 932 F.2d 1475, 1486

(D.C. Cir. 1991):

“French ts the controlling language of the Convention.

. .|WJe must interpret and apply the terms of Article

17 in accordance with their French legal meaning

because the Convention Was drafted in French by civil

law jurists.”

Accord: Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535

(1991); Air France v. Saks, supra, 470 U.S. at 397.

Contrary to the conclusion of Judge Walker, according

to the plain meaning of the “official” Convention text,

damage can be deemed to arise out of Pan Am’s willful

misconduct without necessarily having been caused by it.

otherwise logically would have used the same word in each article.”

Ea dane atmnasire? RAE Sp ant ORT Ca a

eens 4

The words “arising out of’ are of much broader significance

than “caused by,” and are ordinarily understood to mean

“originating from,” “having its origin in,” “growing out of” or

“Flowing from.” Transport Indemnity Co., v. W.D. Schnack.

M.D., 131 Cal.App.3d 149, 152 [182 Cal.Rptr. 256, 258]

(1982); Red Ball Motor Freight, Inc. vy. Employers Mut. Liab.

Ins. Co. Of Wis., 189 F.2d 374, 378 (5" Cir. 195] ); Insurance

Co. Of N. Am. v. Liberty Mut. Ins. Co., 1944 WL 150818

(S.D.N.Y. 1994): Aetna Cas. & Sur. Co. vy. Liberty Mut. Ins.

Co., 459 N.Y.S. 2d 317, 320-21 (1983).

In its opinion, the Second Circuit Court of Appeals

believed its interpretation of the causal nexus in the context

of a claim premised upon willful misconduct would be

complementary with the purported overriding purpose of the

Convention in enacting Articles 17 and 25 which, in its mind,

was “to limit air carriers liability in the event of accident.”

(Apdx. A-26 [Opinion at p. 25].) What the Second Circuit

fails to recognize is that the Convention distinguishes

between liability for an innocent or negligent carrier under

Article 17, as opposed to the liability for a carrier under

circumstances of willful misconduct as contemplated by

Article 25. The Convention by its very language in

structuring a system of air carrier liability incorporates a

relaxed standard of causation where willful misconduct is

involved. To establish liability, damage need merely “arise

out of’ a willful act. In so doing the drafters of the

Convention were following an established principle of tort

liability:

“{RJesponsibility for harmful consequences should be

carried further in the case of one who does an

intentionaily wrongful act than in the case of one who

is merely negligent or is not at fault.”

Restatement (Second) Torts § 435B.

Further support for a relaxed standard of causation

where willful misconduct is involved is also apparent in the

differences between Article 17 and Article 25. The standard

of liability under Article 17 ts strict liability because the

carrier's conduct 1s deemed irrelevant. Indeed, Article 17

addresses damage “caused by” the accident, whereas Article

25 addresses damage “‘‘arising out of’ the carner’s willful

misconduct. Article 17 imposes liability without regard to the

carrier's conduct so long as the “accident causes’ the

damage. Accordingly, not only is the causation standard

adopted by the Second Circuit under circumstances of willful

misconduct on the part of an air carrier contrary to the

language of the Convention itself, but it 1s also inconsistent

with the “system of air carrier liability” established by the

Convention which recognizes different standards of

responsibility depending upon whether innocent/negligent air

carrier conduct is invelved, as compared with circumstances

of willful misconduct on the part of the air carrier.

oa.

CONCLUSION

For the foregoing reasons, it is respectfully requested

that this Petition for Writ of Certiorari be granted and that this

Court reverse the Second Circuit, and compel the trial court

to follow the clear directive of Lexecon and remand this

matter for further proceedings consistent with this Court’s

holding therein.

Respectfully submitted,

MAGANA, CATHCART & McCARTHY

DANIEL C. CATHCART*

CLAY ROBBINS, III

ANN L. MEZZACAPPA

1801 Avenue of the Stars, Suite 810

Los Angeles, California 90067

(310) 553-6630

Attorneys for Petitioners

Ajay Patel, et al

*Counsel of Record

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

4 %

Le ee ee

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals

for the Second circuit. held at the United States Courthouse.

Foley Square, in the city of New York. on the 28_ day of

August one thousand nine hundred and ninety-eight.

Singh,

Plaintiff-Appellant,

Vv. Dkt. No: 97-7428

Pan American World,

Defendant-Appellee.

A petition for rehearing containing a suggestion that the

action be reheard in [sic] banc having been filed herein by the

appellant Patel, et al.

Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc has

been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that

no such judge has requested that a vote be taken thereon.

Apdx. A - ]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Kalpana SHAH, Mehul Shah, Utpala M. Desai, Milind

Sharad Desai, Narendra R. Desai, Swati N. Desai,

Plaintiffs, Sadanand Singh, Individually and as Executor of

the Estate of Kala Singh, Deceased, Samir Singh, by and

through Sadanand Singh, Guardian Ad Litem, Kalpana

Singh, by and through Sadanand Singh, Guardian Ad

Litem, Faraidoon Oshtory, Manjula S. Patel, Sangita Patel,

Nikita Patel, Individually and as Heirs at Law to Surendra

Patel, Deceased, Bakul Shah, Anthony Father Anthony

Theodore, Dilip Parekh, Avani B. Shah, Rupal B. Shah,

Aisha Begum, Mehboob Kahn, Gayatri Dave, Gargi Dave,

minors, by their Guardian Ad Litem, Vinod Dave, Sanjay

Patel, a minor, by and through his Guardian Ad Litem,

C.N. Patel, Ranjanben Patel, Jayshreeben Patel, minors, by

and through their Guardian Ad Litem, Pravin Patel,

Khanjan Dalal, Kalpesh Dalal, Deepali Desai, Nagin Patel,

Tara Patel, Satish Patel, Govind Patel, Chotubhai Patel,

Jamna Patel, Ganga Patel, Ajay Patel, a minor, by and

through his Guardian Ad Litem, Parvati Patel, Parvati

Patel, Plaintiffs-Appellants,

PAN AMERICAN WORLD SERVICES, INC., Defendant,

Pan American World Airways, Inc., Alert Management, a

Apdx. A - 2

hae

act Nathalie aL Taste hi

ella Ae. Se el EA

Cae i Be we i

Florida Corporation, Does 1-50, Detendants-Appellees

Docket Nos. 97-7428(L), 97-7526(CON), 97-7556(CON).

97-7558(CON), 97-7562(CON), 97-7564(CON). 97-

7566(CON), 97-7568(CON), 97-7572(CON). 97-

7574(CON) and 97-7576(CON).

United States Court of Appeals,

Second Circuit.

Argued March 13, 1998.

Decided June 15, 1998.

Before: CARDAMONE, WALKER and MAGILL.’ Circuit

Judges.

WALKER, Circuit Judge:

Plaintiffs-appellants Sadanand Singh, et al., appeal

from the March 24, 1997 judgment of the United States

District Court for the Southern District of New York (John E.

Sprizzo, District Judge ) after jury trial, entered pursuant to

Fed.R.Civ.P. 50, 54(b), and 58, capping each appellant's

recovery at $75,000 under the Convention for the Unification

of Certain Rulc> Relating to International Transportation by

'The Honorable Frank J. Magill, of the United States Court

of Appeals for the Eighth Circuit, sitting by designation.

Andx. A - 3

Air, Oct. 12, 1929, 49 Stat. 3000, TS No. 876 (1934),

reprinted in 49 US.C.A. § 40105 (1997) ("Warsaw

Convention” or "Convention" ); dismissing various California

State law claims brought by plaintiffs-appellants Sadanand

Singh, individually and as executor of the Estate of Kala

Singh, and Samir and Kalpana Singh, through a guardian ad

litem (collectively, the "Singh plaintiffs”); and dismissing the

Singh plaintiffs’ motion, pursuant to 28 U.S.C. § 1404(a), to

transfer venue to the Southern District of California for trial

on the state claims and on Warsaw Convention claims

relevant only to the Singh plaintiffs (collectively, the "non-

common" claims). See Singh v. Pan American World

Airways, Inc. (In re Hijacking of Pan American World

Airways, Inc. Aircraft at Karachi Int'l Airport, Pakistan on

Sep. 5, 1986), 920 F.Supp. 408, 415 (S.D.N.Y.1996)

"Karachi ").

This case arises out of the tragic September 1986

hijacking of Pan Am Flight 73 in Karachi, Pakistan, that led

to approximately twenty deaths and numerous other injuries.

The case presents the issue of whether fraudulent

misrepresentation can consttute "wilful misconduct” within

Article 25(1) of the Convention and, if it can, what causation

as between the fraud and plaintiffs’ damages 1s required. We

also address the threshold question of whether the recent

Supreme Court decision in Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, --- U.S ---, 118 S.Ct. 956, 140

L.Ed.2d 62 (1998)-- requiring cases transferred under 28

Apdx.A-4

Ot Anat Re Dt,

;

U.S.C. § 1407 to be remanded to the transferor courts at the

conclusion of pre-trial proceedings--applies as a general

matter to plaintiffs’ actions and, if Lexecon does apply,

whether it should apply retroactively in this case.

Affirmed.

Background

In 1986, in response to public concern over terrorism

on international airline flights, Pan American World Airways,

Inc. ("Pan Am") contracted with Alert Management Systems,

Inc. ("Alert") to provide a security system for its international

flights. Pan Am thereafter advertised its Alert program,

making various representations tothe public about improved

airport security that either had already been implemented or

would be implemented by Pan Am. The Singh plaintiffs (but

none of the other plaintiffs-appellants) allege that they saw

Pan Am's advertisements and relied upon the representations

of improved security therein in deciding to fly on Pan Am

Flight 73. On September 5, 1986, Pan Am Flight 73 departed

Bombay, India, en route to New York, New York, with a

scheduled intermediary stop at Karachi International Airport

in Karachi, Pakistan. While Flight 73 was on the ground at

Karachi International Airport, armed hijackers drove a vehicle

through a gate onto the airport tarmac, boarded the aircraft,

and eventually opened gunfire on its passengers, killing some

twenty passengers and injuring numerous others.

Plaintiffs-appellants are either passengers who were

injured or representatives of passengers who were killed as a

Apdx. A - 5

result of the hijacking. On February 23, 1987, the Singh

plaintiffs filed an action against defendants in the Southern

District of California asserting claims under the Warsaw

Convention and California state law for the personal injury

and death suffered on board Pan Am Flight 73. Numerous

other actions relating to the hijacking of Pan Am Flight 73

were filed against Pan Am in various courts across the United

States. With the exception of the action entitled Ganga Bahn

v. Pan American World Airways, Inc., No. 87-CV-0547, all of

these actions originated in courts other than the Southern

District of New York ("Southern District") and in 1987 and

1988 were transferred by the multidistrict litigation panel

("MDL panel") to the Southern District for consolidated pre-

trial proceedings under 28 U.S.C. § 1407. In December 1993,

the Southern District granted Pan Am's motion to transfer and

consolidate all of the actions for trial in that court.

On April 14, 1994, after a six-week jury tnal of

plaintiffs’ Warsaw Convention claims, the jury returned a

special verdict answering the following four questions:

1) Do you find by a fair preponderance of the evidence

that Pan Am [ | engaged in wilful misconduct, as defined by

the Court, in connection with the Alert Security Program?

The jury answered "yes."

2) Do you find by a fair preponderance of the evidence

that Pan Am[ | engaged in wilful misconduct, as defined by

the Court, by flying into Karachi International Airport on

September 5, 1986?

Apdx. A-6

;

‘

;

The jury answered "no."

3) If the answe Juestion # 1 is Yes, do you find by

a fair preponderance f the evidence that the wilful

misconduct of Pan Am [ ], in connection with the Alert

Security Program, was a proximate cause of the hijacking?

The jury answered "no."

4) If the answer to Question # 2 is Yes, do you find by

a fair preponderance of the evidence that the wilful

misconduct of Pan Am [ |}, by flying into Karachi

International Airport on September 5, 1986, was a proximate

cause of the hijacking?

The jury did not answer.

The jury found therefore that defendants had not

committed wilful misconduct by flying into Karachi, a claim

common to all plaintiffs. It is not clear, however, why the

district court submitted questions # | and # 3 to the jury as

claims common to all of the plaintiffs, since defendants’

alleged fraudulent misrepresentations could be relevant only

to plaintiffs such as the Singh plaintiffs who, at minimum,

were aware of defendants’ advertisements about the Alert

security program. Finally, the district court did not submit to

the jury the question of whether defendants’ inadequate

security itself constituted wilful misconduct, in all likelihood

because little if any evidence indicated that defendants had

any power to control the level of security at Karachi

International Airport.

On February 14, 1996, almost two years after the

Apdx. A - 7

[REST AVAILABLE COPY

jury's verdict, the district court denied the Singh plaintiffs’

motion, pursuant to 28 U.S.C. § 1404(a), to transfer back to

the Southern District of California their remaining

noncommon California law claims and their fraudulent

misrepresentation claim under the Convention. See Karachi,

920 F.Supp. at 415. The district court then dismissed the

Singh plaintiffs’ state claims as preempted by both the

Warsaw Convention and the Airline Deregulation Act of

1978, 49 U.S.C. app. § 1305(a)(1) (1993), reconstituted in 49

U.S.C. § 41713(b)(1), and dismissed their fraudulent

misrepresentation claim as barred by the jury's special verdict.

Karachi, 920 F.Supp. at 414. On March 24, 1997, the district

court entered final judgment, pursuant to Fed.R.Civ.P. 50,

54(b), and 58, awarding plaintiffs damages within the

limitations imposed. It refused to award damages in excess

of those limits because--as per the jury's special verdict--

plaintiffs had failed to establish either defendants’ wilful

misconduct or the requisite causation between such

misconduct and their damages.

Plaintiffs-appellants appeal from that judgment. In

particular, the Singh plaintiffs contend that (1)

notwithstanding the jury's special verdict, they are entitled to

bring their fraudulent misrepresentation claim under the

Convention, and (2) they are entitled to bring their California

State law claims in addition to their Warsaw Convention

claim. All of the plaintiffs-appellants also request a new trial

on the basis that the district court's alleged misconduct during

Apdx.A-8

trial prejudiced the jury and that the court improperly refused

to qualify as an expert one of plaintiffs’ proffered witnesses.

Discussion

1. Remand Under 28 U.S.C. § 1407

We first address the threshold issue of whether the

Supreme Court's recent decision in Lexecon Inc. y. Milberg

; Weiss Bershad Hynes & Lerach, --- U.S ---, 118 S.Ct. 956,

140 L.Ed.2d 62 (1998), requires this court to vacate the

district court's judgment as to all plaintiffs and remand al! of

: the actions to the transferor courts from which the MDL panel

transferred each action pursuant to 28 U.S.C. § 1407.

With the exception of Ganga Bahn, No. 87-CV-0547,

all of the appellants’ actions originated in courts other than the

Southern District and were transferred in 1987 and 1988 to

the Southern District by the MDL panel pursuant to 28 U.S.C.

§ 1407 § 1407"), which states:

When civil actions involving one or more

common questions of fact are pending in

different districts, such actions may be

transferred to any district for coordinated or

consolidated pretrial proceedings. Such

transfers shall be made by the judicial panel

on multidistrict litigation authorized by this

section upon its determination that transfers

for such proceedings will be for the

convenience of parties and witnesses and will

promote the just and efficient conduct of such

Apdx. A -9

actions. Each action so transterred shall be

remanded by the panel at or before the

conclusion of such pretrial proceedings to the

district from which it was transterred unless it

shall have been previously terminated

(E:mphasis added). In 1993, over the objections of all of the

plaintiffs, defendants moved to transfer the actions to the

Southern District for a consolidated liability trial, pursuant to

28 U.S.C. § 1S7(by 5)" § 15705) 5)")--a bankruptcy statute-

or alternatively, pursuant to 28 USC. § 1404(a) (" §

1404(a)")--a general venue statute. On December 13, 1993,

the district court granted defendants’ motion to transfer "for

the reasons stated at [the] Oral Argument” of December 10,

1993, but did not state whether it was relying on § 157(b)(S)

or § 1404(a). The parties have not furnished a transcript of

that oral argument and it ts not a part of the record on appeal.

A 1994 joint pre-trial order signed by the district court and

lead counsel for both parties, however, states that "all actions

have been transferred to [the Southern District], pursuant to

lithe 28 United States Code, § 1404(a), tor the trial of all

common lability tissues," and therefore it appears that the

district court did transfer the actions pursuant solely to §

1404(a). In 1994, following tral and prior to the district

court's entry of judgment, the Singh plaintiffs moved,

pursuant to § 1404(a), to transfer their action back to the

Southern District of California--a motion demed by the

district court in 1996. See Karachi, 920 F.Supp. at 415.

Apdx. A - 10

In Lexecon, the Supreme Court held that a district

court to which cases have been transferred pursuant to § 1407

for pretrial proceedings cannot, after conclusion of the pretrial

proceedings, transfer the case to itself for trial under §

1404(a). See --- U.S. at ---, 118 S.Ct. at 959. Because the

plain language of § 1407 dictates that "{eJach action...

transferred {under § 1407] shall be remanded by the [MDL]

panel at or before the conclusion of ... pretrial proceedings,"

28 U.S.C. § 1407(a), the Court reasoned that "no exercise in

rulemaking can read that obligation out of the statute."

Lexecon, --- U.S. ---, at 118 S.Ct. at 963.

Defendants respond with feur arguments each of

which, if accepted, could independently bar application of

Lexecon: (1) that the district court transferred the action to

itself for trial pursuant to § 157(b)(5) and not § 1404(a), and

therefore Lexecon does not apply; (2) that even if the district

court did transfer pursuant to § 1404(a), it could have

transferred pursuant to § 157(b)(5S) and, again, Lexecon would

not apply; (3) that even if Lexecon is applicable as a general

matter, it should not be applied retroactively in this case; and

(4) that plaintiffs failed to preserve their Lexecon remand

right by failing to request a remand under § 1407 or to object

properly to the district court's transfer of venue.

A. Lexecon's Applicability to Section 157(b)(5)

We note first that the district court did transfer

plaintiffs’ action pursuant to § 1404(a) and not § 157(b)(5).

Apdx. A - 11

Even assuming, however, that we may look to whether venue

was sustainable under another legal basis such as § 157(b)(5),

and assuming that venue in this action would have been

sustainable under § 157(b)(5)--both issues as to which we

express no opinion-it appears that Lexecon should apply to §

157(b)(5) transfers as well as to § 1404(a) transfers.

Although Lexecon's holding applies explicitly only to §

1404(a)-the only statute under which the transferee district

court in that case purported to transfer venue--Lexecon’'s

reasoning applies equally to transfers pursuant to any venue

statute. Lexecon recognizes that "no exercise in rulemaking

can read... out of the statute" the MDL panel's obligation to

remand each action to its respective transferor court at or

before the conclusion of pretrial proceedings. /d. (emphasis

added). Lexecon does not preclude later consolidation of

multiple suits for trial after they have first been returned to the

district courts from which they came. "[O]|n any view of §

1407(a), if an order may be made under § 1404(a), it may be

made after remand of the case to the originating district

court.” /d. at 118 S.Ct. at 964 (footnote omitted) (emphasis

added). Indeed, Lexecon observes that § 1407

affects only the pretrial stages in multidistrict

litigation. It would not affect the place of trial

in any case or exclude the possibility of

transfer under other Federal statutes [such as

§ 157(b)(5) }.... The subsection requires that

transferred cases be remanded to. the

Apdx. A - 12

Bi heehee weselaty, fa

originating district at the close of coordinated

pretrial proceedings.

Id. (quoting H.R.Rep. No. 90-1130, at 3-4 (1968), reprinted

in 1968 U.S.C.C.A.N. 1898, 1900-01). Rather, posing "[t]he

relevant question . . . [of] whether a transferee court, and not

a transferor court, may grant... a motion [for transfer of

venue],” the Court concluded that "self-assignment is beyond

the scope of the transferee court's authority." /d.

We also note that Lexecon is not premised upon the

belief that § 1404(a) does not iiself permit self-transfer

(whereas, as defendants may claim, § 157(b)(5) does).

Lexecon explicitly leaves unresolved the issue of whether §

1404(a) permits self-transfer See id. at ---- n. 4, 118 S.Ct. at

964 n. 4. In short, Lexecon and § 1407 require that the MDL

panel remand to the transferor court any action “at or before

the conclusion of . . . pretrial proceedings," and any further

transfers of venue for trial under anv statute must follow such

remand. Whether, after remand to the transferor court, a court

has the power to transfer venue to itself under § 1404(a) or §

157(b)(5) is a separate issue that we have no need to decide.

B. Retroactivity of Lexecon

We next turn to whether Lexecon should be applied

retroactively in this case.

When [the Supreme Court] applies a rule of

federal law to the parties before it, that rule is

the controlling interpretation of federal law

Apdx. A - 13

and must be given full retroactive effect in all

cases still open on direct review and as to all

events, regardless of whether such events

predate or postdate our announcement of the

rule.

Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 113

S.Ct. 2510, 125 L.Ed.2d 74 (1993). Harper, however, did not

require retroactive application where the Supreme Court

explicitly " 'reserve[s] the question whether its holding should

be applied to the parties before it.' " /d. (quoting James B.

Beam Distilling Co. v. Georgia, 501 U.S. 529, 539, 111 S.Ct.

2439, 115 L.Ed.2d 481 (1991)). Lexecon is such a case.

Responding to respondent's nonretroactivity argument, the

Court concluded that it was "unnecessary for [it] to consider”

that issue because it was not presented to the lower courts or

in opposition to the certiorari petition. See Lexecon, --- U.S.

at ---- n. 5,118 S.Ct. at 965 n. 5. The Court then remanded

the case for further proceedings. We therefore apply the three

factor retroactivity analysis of Chevron Oi/ Co. v. Huson, 404

U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971):

First, the decision to be _ applied

nonretroactively must establish a new

principle of law, either by overruling clear

past precedent on which litigants may have

relied or by deciding an issue of first

impression whose resolution was not clearly

foreshadowed. Second, ... we must ... look[ ]

Apdx. A- 14

to the prior history of the rule in question, its

purpose and effect, and whether retrospective

operation will further or retard its operation.

Finally, we have weighed the inequity

imposed by retroactive application, for where

a decision of this Court could produce

substantial inequitable results if applied

retroactively, there is ample basis in our cases

for avoiding the injustice or hardship by a

holding of nonretroactivity.

Id. at 106-07, 92 S.Ct. 349 (citations and quotation marks

omitted).

Because Lexecon "reverse|d] the longstanding practice

under [§ 1407],” --- U.S. at ---, 118 S.Ct. at 962; see, e.g.,

Pfizer, Inc. v. Lord, 447 F.2d 122, 122-25 (2d Cir.1971), it is

unquestionable that Lexecon “overrul[ed] clear past precedent

on which litigants may have relied. " Second, retrospective

application of Lexecon would frustrate the "essential [sic]

purpose of section 1407 to ‘promote the just and efficient

conduct’ of complex multidistrict litigation." Pfizer, 447 F.2d

at 125 (quoting 28 U.S.C. § 1407(a)); see Crown, Cork &

Seal Co. v. Parker, 462 U.S. 345, 353, 103 S.Ct. 2392, 76

L.Ed.2d 628 (1983) (section 1407 is one method "by which

the burdens of multiple lawsuits may be avoided"). In the

instant case, this primary concern outweighs the subsidiary

concern of § 1407 to "favor ... [the] plaintiffs’ choice of

forum." Lexecon, --U.S. ---, at 118 S.Ct. at 960. In 1993, the

Apdx. A - 15

transferee district court transferred the actions to itself for

trial; in 1994, that court held a six-week jury tnal; and

Lexecon was not decided until March 1998, nearly a year after

the judgment of the district court and ten days before oral

argument in this court. Retroactive application of Lexecon

would require remand of each action to its respective

transferor court, with the possibility that some or all of the

actions will not be re-transferred to the Southern District. If

this should happen, the jury's special verdict will be of no

effect as to some or all of the actions, which would then have

to be retried, possibly separately. Retroactive application

could therefore lead to an enormous waste of judicial

resources, precisely the result Congress sought to avoid by

enacting § 1407. At least when a trial has been completed

and final judgment has been entered, as in the instant case, the

second Chevron factor weighs heavily in favor of non-

retroactive application.

As to the third Chevron factor, which weighs the

equities of retroactive application, the Supreme Court has

recently observed that “we can scarcely permit ‘the

substantive law [to] shift and spring’ according to ‘the

particular equities of [individual parties'] claims’ of actual

reliance on an old rule and of harm from a retroactive

application of the new rule." Harper, 509 U.S. at 97, 113

S.Ct. 2510 (alterations in original) (quoting Beam, 501 U.S.

at 543, Ill S.Ct. 2439). This factor may therefore be of little,

if any, effect. Assuming that the third factor is no longer

Apdx. A - 16

valid, we easily hold that the first two Chevron factors in this

case preclude Lexecon 's retroactive application. To the

extent that the third Chevron factor still has force, the equities

still favor not applying Lexecon in this case. After twelve

years of litigation, the parties have an interest in resolution of

the fundamental issues in this case and, if we so decide, a

final judgment from this court.

Because we hold that Lexecon does not apply

retroactively to the instant action, we do not address whether

either the Singh or the non-Singh plaintiffs waived their nght

to a remand under § 1407. See Lexecon, --- U.S. at ---, n. 1,

118 S.Ct. at 962 n. 1.

Il. Warsaw Convention Claim

We next turn to the merits of appellants’ Warsaw

Convention claim. The Convention applies "to all

international transportation of persons, baggage, or goods

performed by aircraft for hire," Convention, art. 1, and

governs the liability of international air carners for damages

resulting from an "accident," Convention, art. 17, which has

been interpreted to include hijacking or terrortst activity. See

Pflug v. Egyptair Corp., 961 F.2d 26, 29 (2d Cir.1992).

Under Article 17 of the Convention,

{t]he carrier shall be liable for damage

sustained in the event of the death or

wounding of a passenger or any other bodily

injury suffered by a passenger, if the accident

Apdx. A- 17

which caused the damage so sustained took

place on board the aircraft or 1n the course of

any of the operations of embarking or

disembarking.

Article 22 of the Convention, as modified by the Montreal

Agreement, limits the liability created by Article 17 "for each

passenger for death, wounding, or other bodily injury [to]

$75,000 inclusive of legal fees and costs, except that, in case

of a claim brought in a State where provision 1s made for

separate award of legal fees and costs, the limit [shall be]

$58,000 exclusive of legal fees and costs." Defendants have

conceded liability and the district court entered judgment

against defendants for damages within the limits prescribed

by Article 22 as modified.

Article 25(1) of the Convention as translated,

however, provides that

{t]he carner shall not be entitled to avail

himself of the provisions of this convention

which exclude or limit his lability, if the

damage is caused by his wilful misconduct or

“The Montreal Agreement, otherwise known as the

Agreement Relating to Liability Limitations of the Warsaw

Convention and the Hague Protocol Agreement CAB 18990,

applies where (as in the instant case) the flight itinerary includes

a stop in the United States. Pan Am 1s a signatory to the Montreal

Agreement, a private agreement that has been approved by the

United States government by Exec. Order No. 23,680, 31 Fed.Reg.

7,302 (1966).

Apdx. A- 18

by such default on his part as, in accordance

with the law of the court to which the case is

submitted, is considered to be equivalent to

wilful misconduct.

The Singh plaintiffs claim that the district court improperly

capped defendants' liability to the limits prescribed by Article

22 as modified because defendants’ misrepresentations on the

subject of improved airport security constitute "wilful

misconduct" within Article 25(1) and caused them damage.

This claim, sharply contested by defendants, is a principal

issue of this appeal.

A. Fraudulent Misrepresentation as "Wilful Misconduct"

As a preliminary matter, defendarits maintain that the

district court erred when it held that fraudulent

misrepresentation by an air carrier can itself constitute "wilful

misconduct" within Article 25(1) of the Convention.

Defendants claim that such a holding "transform{s] the

Convention into an international agreement that imposes

liability on air carriers for allegedly false or fraudulent

advertising," and undermines the desired uniformity of the

Convention's liability scheme by "allow{ing] those passengers

who have 'relied' on fraudulent advertising to recover amounts

in excess of the generally applicable limits of the Convention,

while other passengers who suffered equal or greater injuries

in the same accident would not." The Singh plaintiffs respond

that the Convention was not designed to "insulate an airline

Apdx. A - 19

from the consequences of its own fraud,” and that " where the

wilful misconduct consists of fraudulent statements made

before the flight to lure passengers onto the aircraft, it is only

logical that the misconduct can affect different passengers

differently, and that they may have different claims based on

their individual circumstances. "

"Wilful misconduct under the Convention means that

a carrier must have acted either 1) with knowledge that its

actions would probably result in injury or death, or 2) in

conscious or reckless disregard of the fact that death or injury

would be the probable consequence of its actions." Pagnucco

v. Pan American World Airways, Inc. (In re Air Disaster at

Lockerbie Scotland on Dec. 21, 1988 ), 37 F.3d 804, 812 (2d

Cir.1994) ("Lockerbie IJ")? The district court defined wilful

misconduct for the jury as making false statements either

knowingly or "with no basis in fact or with reckless disregard

of the truth" and with awareness that defendants’ "fail[ure] to

act in the way they promised to do" was "likely to cause

injuries to passengers." See Trial Tr. at 2750, 2762. It is

unclear to us why, as defendants contend, fraudulent

misrepresentations as to the state of an airline's security

should enjoy unique status as non-wilful misconduct within

Article 25. Indeed, we recognized such wilful misconduct in

Lockerbie Il, 37 F.3d at 822 (admitting, as proof of

misconduct, "proof regarding the ‘Alert’ Security Program

‘We discuss the causation aspect of wilful misconduct in

part 11(B), below.

Apdx. A - 20

reveal{ing] first, that it was neither related to security, nor was

it a program. Instituted by Pan Am in May 1986 during a

period of sharp decline in international travel due to terrorist

attacks, the program was a misleading public relations ploy

designed to make would-be travelers feel more secure. "). The

‘ Convention's uniformity principle, moreover, plainly does not

H require equal treatment of all Passengers injured by an

aviation accident where only a subset of those passengers

were injured as a result of the carrier's wilful misconduct--

here, Pan Am's fraudulent misrepresentations.

B. Causation

Our conclusion that fraudulent misrepresentation can

constitute "wilful misconduct" leads to the much more

difficult question of what causal nexus must be shown

between the misrepresentation and plainuffs' damages. We

therefore determine first, the proper standard for causation

under the Convention and second, whether the jury's special

verdict precludes a finding of causation under that standard.

(1) Proper Standard of Causation. Article 25 of the

Convention which, as noted, removes the liability limitation

of Article 22, speaks only generally to causation: liability

exists where the plaintiffs’ "damage is caused by [the carrier's] :

wilful misconduct. " C hallenged to find the test for causation

in fraudulent misrepresentation Cases, a matter the

Convention leaves unresolved, the Singh plaintiffs suggest a

winding path to that conclusion. They argue that, in the

Apdx. A - 2]

absence of a prescribed test for causation in fraudulent

misrepresentation cases, the Convention derogates that issue

to another source of law-here United States law, see

Zicherman v. Korean Air Lines Co., 516 U.S. 217, 227-28,

116 S.Ct. 629, 133 L.Ed.2d 596 (1996); that Zicherman

forbids creation of a federal common-law rule of causation,

see id. at 230-31, 116 S.Ct. 629; that, in the absence of federal

statute, the controlling law (including choice of law rules) 1s

that of the forum jurisdiction, see Brink's Ltd. v. South

African Airways, 93 F.3d 1022, 1030 (2d Cir.1996), cert.

denied, --- U.S ---, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997);

that where there has been a change of venue, the forum

jurisdiction is where the action has been filed--here the

Southern District of California, see Van Dusen v. Barrack,

376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); that

California's choice of law rules therefore determine which

substantive law applies, see Valley Juice Ltd. v. Evian Waters

of France, Inc., 87 F.3d 604, 607 (2d Cir.1996); that under

California's if governmental interests" approach to choice of

law rules, California law would apply, see Reich v. Purcell,

67 Cal.2d 551, 555-56, 63 Cal.Rptr. 31, 432 P.2d 727 (1967);

and that California law prescribes a causal nexus between

wilful misconduct and damages that is weaker than the

causation test used by the district court. See Garcia v.

Superior Court of Santa Clara County, 50 Cal.3d 728, 737,

268 Cal.Rptr. 779, 789 P.2d 960 (1990). We disagree.

Article 24 of the Convention states that any action for

Apdx. A - 22

Sanaa Nee Mette ta,

damages under Article 17 "can only be brought subject to the

conditions and limits set out in this convention. " Convention.

arts. 24(1), 24(2). We believe that this means that unless the

Convention reserves an issue for determination by the law of

another jurisdiction, the law of the Convention--not federal

common law, state law, or any other law of the forum court--

applies. Unlike in this case, the Convention articles at issue

in both Zicherman and Brink's suggested that the critical

questions in those cases were to be decided according to the

law of other fora. In determining whether loss of society

damages, resulting from the death of a relative in a plane

crash on the high seas, were recoverable, Zicherman looked

to Article 24(2), which states that Article 24 applies "without

prejudice to the questions as to who are the persons who have

the right to bring suit and what are their respective nights."

Zicherman, 516 U.S. at 224-25, 116 S.Ct. 629. Zicherman

therefore concluded that "the law of the Convention does not

affect the substantive questions of who may bring suit and

what they may be compensated for," and looked to United

States law to determine the result. Jd; see also Pescatore y.

Pan American World Airways, Inc., 97 F.3d 1, 8 (2d

Cir.1996). Similarly, in determining whether theft by an

employee acting within the scope of employment constitutes

"wilful misconduct," Brink's looked to the law of the forum

jurisdiction, as contemplated by the specific language of

Article 25(1), which applies to "wilful misconduct or [ ] such

default ... as, in accordance with the law of the court to which

Apdx. A - 23

the case 1s submitted, 1s considered to be equivalent to wilful

misconduct.” See Brink's, 93 F.3d at 1028-29.

The Convention "was intended to serve as a uniform,

international law" and one of its central purposes was "to

establish uniformity 1n the aviation industry with regard to .

.. the substantive law applicable" to claims "arising out of

international transportation." Rein vy. Pan American World

Airways Inc. (In re Air Disaster at Lockerbie, Scotland on

Dec. 21, 1988 ), 928 F.2d 1267, 1270, 1280 (2d Cir.1991)

("Lockerbie J") (quotation marks omitted). Unless otherwise

indicated by the Convention, application of various rules of

substantive law on the same question, depending on the state

in which an action was brought and that state's choice of law

rules, tends to undermine the Convention's uniformity

principle. Because no provision of the Convention suggests

that the issue of causation should be decided according to the

law of another jurisdiction, we look to "the conditions and

limits set out in this convention." Convention, art. 24(1).

The issue of the standard of causation applicable in

fraud-based "wilful misconduct" cases under the Convention

is apparently one of first impression in the United States. In

interpreting the Convention, we therefore "begin with the text

of the treaty and the context in which the written words are

used," and if necessary to "ascertain their meaning we may

look beyond the written words to the history of the treaty, the

negotiations, and the practical construction adopted by the

parties." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534-

Apdx. A - 24

35, 1 S.Ct. 1489, 113 L.Ed.24 569 (1991) (quotation marks

omitted).

Article 25 of the Convention. as translated, applies

where the plaintiffs’ "damage is caused by [the carrier's]

wilful misconduct. "| Where fraudulent misrepresentation

constitutes the "wilful misconduct." the causation language of

Article 25 is susceptible to three interpretations. First, to the

extent a plaintiff reasonably relies on a misrepresentation and

is thereby induced to board an airplane that is hijacked--

leading plaintiff to suffer injury--the misrepresentation could

be said to have "caused" plaintiff's injury, or "damage." We

believe that this "but for" or "factual" causation is insufficient

to establish the causation required by Article 25. It cannot

credibly be maintained, for example, that where a plaintiff

reasonably relies upon an airline's fraudulent

misrepresentations of good meals, padded seats, and ample

leg room and the plaintiffs plane is then hijacked and the

plaintiff injured, that the misrepresentation--by Causing the

plaintiff to board the plane--in any way "caused" plaintiff's

injuries as defined by Article 25. At oral argument, the Singh

plaintiffs conceded the untenability of such a factual

causation theory.

A second interpretation--the one urged by the Singh

plaintiffs on appeal--would define causation as both

reasonable reliance on the misrepresentation inducing

Passengers to use a carrier and a reasonable relationship

between the injuries and the representations relied upon.

Apdx. A - 25

Lee ee ere

Because the Singh plaintiffs were allegedly induced by Pan

Am's misrepresentations of improved security to fly Pan Am

and because one of the purposes of such security was to

prevent hijackings such as the one that caused plaintiffs'

injuries, the Singh plaintiffs contend that Pan Am's

misrepresentations "caused" their damage. If, however, Pan

Am's institution of the Alert program as promised would not

have prevented the hijacking of Pan Am Flight 73, then the

representation cannot have "caused" plaintiffs’ injuries any

more than the failure to serve a promised meal under the first

interpretation, and any "reasonable relationship" between the

representations and the injuries would be purely coincidental.

The Convention's "clearly [ ] overriding purpose--to limit air

carriers’ potential liability in the event of accidents," see

Lockerbie 1, 928 F.2d at 1270, would be undermined if air

carriers were held liable for damages that would have

occurred regardless of whether or not the carrier's

representations of improved security were ultimately

performed as promised. We therefore reject this second,

"reasonable relationship" formulation of causation as well.

Rather, we believe that to establish Article 25(1), causation

for fraud-based wilful misconduct claims, the Convention

requires plaintiffs to prove by a preponderance of the

evidence first, that their reasonable reliance on the fraudulent

misrepresentations induced them to use the carrier and

second, that the damages would not have occurred if the

carrier had performed as promised. In the instant case,

Apdx. A - 26

therefore, defendants would not be liable under Article 25(1)

if, assuming they had instituted the Alert security program as

represented to the Singh plaintiffs. the hijacking would still

have occurred.

(2) The Jury's Special Verdict.

Our next inquiry is whether the special verdict form

and jury charge properly applied the test elucidated above, in

which case the jury's special verdict would dispose of the

causation issue and require dismissal of the Singh plaintiffs’

Warsaw Convention claims. "The formulation of special

verdict questions rests in the sound discretion of the trial

judge, and should be reviewed by an appellate court only for

an abuse of that discretion." Vichare v. AMBAC Inc., 106 F.3d

457, 465 (2d Cir. 1996). "Reversal is warranted if the

questions mislead or confuse the jury, or if they inaccurately

frame the issues to be resolved by the jury." /d. However, the

court's special verdict questions "must be read in conjunction

with the judge's charge to the jury." /d. at 466.

The special verdict form in the instant case asked the

question: "[D]o you find by a fair preponderance of the

evidence that the wilful misconduct of Pan American World

Airways, Inc., in connection with the Alert Security Program,

was a proximate cause of the hijacking?" to which the jury

answered "no." This somewhat ambiguous special verdict

form--asking whether the wilful misconduct in connection

with the Alert program proximately caused the hijacking-

could have left some room for misinterpretation by the jury.

Apdx. A - 27

An advertising program plainly cannot "cause" a hijacking

and it is not inconceivable that the jury could have rejected a

finding of causation on this basis. The special verdict form

should have asked: "Had Pan Am instituted the security as

promised in its Alert Security Program, would the hijacking--

and therefore plaintiffs’ injuries--have occurred?"

However, the district court's jury charge as to

causation stated:

Proximate cause means that the willful

misconduct of Pan Am was a substantial

contributing factor in bringing about the

hijacking. . . . Obviously we know that the

conduct of the hijackers caused the hijacking

to a large extent. So the plaintiffs do not have

the burden of proving that the willful

misconduct of Pan Am was the sole cause of

the accident. . . . [I]f this hijacking would have

occurred in any event regardless of whether

Pan Am was guilty of willful misconduct or

not, then proximate cause would not be

shown... . If it was not a contributing factor

in the sense that even if the willful conduct

had not taken place, the hijacking would have

happened anyway, . . . that even if all the

security arrangements had been put in place as

represented by Pan Am, even if they had done

everything they said they were supposed to

Apdx. A - 28

do, the hijacking would have occurred

anyway, then plaintiffs would not have carried

the burden of showing that it is a proximate

Cause.

Trial Tr. at 2763-64 (emphasis added). This jury charge did

clarify the special verdict form by stating that the jury could

not find causation if "the hijacking would have occurred"

“even if all the security arrangements had been put in place as

represented by Pan Am, even if they had done everything they

said they were supposed to do." In light of plaintiffs’ failure

to request a more precise charge consistent with our earlier

discussion of the law. their failure to object to the district

court's proposed special verdict form, see Trial Tr. at 2543-

44, and their concession before the district court that in fact

the jury was "asked whether or not [the hijacking] would have

happened if [defendants] did everything that was promised."

Tr., March 10, 1995, at 11. we find that the jury instructions,

taken as a whole, were not sufficiently misleading or

ambiguous as to constitute plain error. See United States v.

Ciak, 102 F.3d 38, 45 (24 Cir.1996) (applying plain error

review where party failed to object to jury charge). In the

context of the jury instructicns that were given, the jury's

special verdict precludes any finding of causation as to the

Singh plaintiffs’ fraudulent misrepresentation claim under the

Warsaw Convention.

C. "Causes" v. "Arises From"

Apdx. A - 29

The Singh plaintiffs also challenge the district court's

special verdict form and jury charge on the theory that the

Article 25(1) causation test in the official American and

British translations of the Warsaw Convention 1s

mistranslated and improperly requires a stronger nexus

between wilful misconduct and damage than does the test as

set out in the original French text. The Singh plaintiffs note,

correctly, that "[b]ecause the only authentic text of the

Warsaw Convention is in French, the French text must guide

our analysis." Eastern Airlines, 499 U.S. at 535, 11 S.Ct.

1489. The official French text of Article 25(1) reads: "si le

dommage provient de son," which the Singh plaintiffs claim

to mean "if the damage arises out of " and not "if the damage

is caused by" the wilful misconduct. They note further that

Article 17, which in the American translation establishes

carner liability where an “accident ... caused the damage,"

reads "cause le dommage " in the official French text. After

the jury returned its special verdict, the Singh plaintiffs

presented to the district court the uncontroverted declaration

of their French legal expert, Professor Alain Levasseur, that

"provient de son" means “arises from" in the context of

Article 25(1). The Singh plaintiffs maintain that because,

under the proper translation of Article 25(1), their damages

would only have to “arise from" Pan Am's fraudulent

misrepresentation, the jury's special verdict as to causation

does not now preclude their fraudulent misrepresentation

claim.

Apdx. A - 30 }

Defendants respond that, because Article | 7--creating

the carrier's liability--requires proximate cause, plaintiffs’

reading of Article 25 is illogical because it would "allow

recovery of unlimited damages for an act of wilful

misconduct that could not, in the first instance, have

supported a finding of liability under Article 17." This

argument misses the fact that Article 17 requires proximate

causation as between the "accident " and plaintiffs’ "damage,"

while Article 25, under plaintiffs’ reading, would require the

looser "arising from" causation only as between defendants’

"wilful misconduct and_ plaintiffs’ "damage." (Emphasis

added). This interpretation appears to reconcile the

inconsistent standards of causation by attributing them to

differing levels of culpability.

Defendants next observe that no United States court

has ever questioned the American/British translation of

Article 25(1) as it relates to causation. "Age [, however, ] is no

antidote to clear inconsistency with a statute.” or a treaty.

Lexecon, --- U.S. at ---, 118 S.Ct. at 962 (quoting

Metropolitan Stevedore Co. v. Rambo, §15 U.S. 291. 300. 115

S.Ct. 2144, 132 L.Ed.2d 226 (1995)). Defendants note.

finally, that Article 25(2), which as translated states that a

carrier may not avail itself of liability limitations "if the

damage is caused [by the wilful misconduct of] any agent of

the carrier acting within the scope of his employment," reads

"a ete cause" in the original French text. (Emphasis added).

Defendants reason that the Convention did not contemplate

Apdx. A - 3]

"different standards of causation ... depending on whether the

party engaging in wilful misconduct [was] the air carrier itself

or its agent. "

We note that the Singh plaintiffs’ translation error

argument logically applies not just to fraudulent

misrepresentation but to all wilful misconduct claims.

Because plaintiffs did not object to the jury charge or special

verdict form on this ground until after the jury's special

verdict, however, we do not resoive this translation error issue

except to hold-upon the limited record before us--that the

district court's instructions were not plain error. Plaintiffs'

argument based on the French text, while not without

substance, is one that the district court could not have

anticipated given the state of the law. See Ciak, 102 F.3d at

45 (applying plain error review where party failed to object to

jury charge). Plaintiffs’ own requested jury charge asked

"whether the wilful misconduct was a proximate cause of the

hijacking and the injuries and deaths of the passengers," and

their requested special verdict form asked whether Pan Am's

wilful misconduct was "a cause" of plaintiffs’ damages. We

therefore leave to another day whether "provient de son" in

Article 25(1) is properly translated as "is caused by" or "arises

from," (and, if the latter, its significance), an issue of apparent

first impression in this country.

III. State Law Claims

The Singh plaintiffs’ common law claims for

Apdx. A - 32

rescission, negligence, wrongful death, conspiracy to defraud.

breach of contract, and fraud are all preempted by the Warsaw

Convention. It is now well-established that "fa]ll state law

claims that fall within the scope of the Convention are

preempted." Fishman v. Delta Air Lines, Inc., 132 F.3d 138.

141 (2d Cir. 1998) (citing Lockerbie /, 928 F.2d at 1273): see

Coker v. Pan American World Airways, Inc. (In re Pan

American Corp.), 950 F.2d 839, 847 (2d Cir. 199] )

(transferee court in Second Circuit must apply preemption

law as construed by the Second Circuit). This is because the

Convention

had two primary goals: first, to establish

uniformity in the aviation industry with regard

to the procedure for dealing with claims

arising out of international transportation and

the substantive law applicable to such claims

[and] second-clearly the overriding

purpose--to limit air carriers’ potential liability

in the event of accidents.

Lockerbie I, 928 F.2d at 1270 (quotation marks omitted).

Moreover, “‘[t]he existence of the state causes of action would

not only result in the inconsistent application of law to the

same accident, but also would cause enormous confusion for

airlines in predicting the law upon which they would be called

to respond.” /d. at 1276. All of the Singh plaintiffs' common

law claims are "within the scope" of Article 17 of the

Convention, in that they all seek damages for "the death or

Apdx. A - 33

wounding of a passenger or any other bodily injury suffered

by a passenger" caused by an “accident. . . on board [an]

aircraft" in international transportation. Convention, arts. 1,

17; see Fishman, 132 F.3d at 141.

Because all of the Singh plaintiffs’ common law

claims are preempted by the Warsaw Convention, we have no

need to address the second arrow in defendants’ preemption

quiver: the questionable contention that somehow all of

plaintiffs’ state claims implicate state laws or regulations

"having the force and effect of law relating to rates, routes, or

services of any air carrier,” and are therefore preempted by

the Airline Deregulation Act of 1978, 49 U.S.C. app. §

1305(a)(1) (1993), reconstituted in 49 U.S.C. § 41713(b)(1).

See generally American Airlines, Inc. v. Wolens, 513 U.S.

219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995); Morales vy.

Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119

L.Ed.2d 157 (1992).

IV. Challenge to the Trial Judge's Conduct

All of the plaintiffs argue that the trial judge

committed reversible error by improperly questioning

witnesses before the jury. In reviewing a challenge to a tral

judge's conduct, we determine not "whether the trial judge's

conduct left something to be desired, or even whether some

comments would have been better left unsaid[{, but] .. .

whether the judge's behavior was so prejudicial that it denied

[a party] a fair, as opposed to a perfect, trial." United States v.

Apdx. A - 34

Rosa, 11 F.3d 315, 343 (2d Cir.1993) (quotation marks

omitted). Our statement of this kegal standard in no sense

should be taken to detract from our counsc! that, of course, “a

court must strive for ‘that atmosphere of perfect impartiality

which is so much to be desired in a judicial proceeding,”

Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265,

273 (2d Cir.1996) (quoting Glasser v. United States, 315 U.S.

60, 82, 62 S.Ct. 457, 86 L.Ed. 680 (1942)), and "must be

especially cautious and circumspect in language and conduct

during a jury trial. " /d. (quotation marks omitted). Although

"asking numerous and probing questions of witnesses" is

"unquestionably proper,” a "trial judge should limit

questioning to inquires necessary to clarify ambiguities,

correct misstatements, or obtain information necessary to

make rulings," United States v. Manko, 979 F.2d 900, 905 (2d

Cir.1992), and "[w]e will reverse on the basis of a judge's

improper remarks if the judge expresses [his] opinion on an

ultimate issue of fact in front of the jury or [argues] for one of

the parties." Causey v. Zinke (In re Aircrash in Bali,

Indonesia), 87\ F.2d 812, 815 (9th Cir.1989) (alteration in

original) (quotation marks omitted). "[I]t is only after an

examination of the entire record," however, "that we can

come to a conclusion about the conduct of the district court."

Manko, 979 F.2d at 905-06 (quotation marks omitted).

Of the many examples cited by plaintiffs, the trial

judge's conduct in the jury's presence was troublesome only

in the judge's questioning of plaintiffs’ principal airport

Apdx. A - 35

security expert, Isaac Yeffet. a former head of El Al security,

as follows:

THE COURT: Do you have an opinion as to what the state of

security was at Karachi Airport on September 5, 1986?

THE WITNESS: Yes, sir.

THE COURT: What is that opinion? THE WITNESS: That

if terrorists--

THE COURT: No, no, what is that opinion -- not if, not

hypothetically what could happen -- as to the state of security

at that airport?

THE WITNESS: That they cannot near the aircraft stop

terrorists who is [sic] coming to attack or to hijack the

aircraft.

THE COURT: That is not an opinion. That is just your

statement that they couldn't prevent what happened.

THE WITNESS: That's right.

THE COURT: I take it you have very good security on the

West Bank, isn't that correct, in Israel?

THE WITNESS: Yes, your Honor.

THE COURT: Troops all over the place?

THE WITNESS: Yes.

THE COURT: Somebody went into a mosque and shot 60

people. So what I am saying to you is, | ask you for your

opinion of the nature of security. Was it good, bad, or

indifferent? That 1s what | want to know. That is what they

need to know.

Apdx. A - 36

THE WITNESS: Your Honor, very bad.

Trial Tr. at 1057-58. The trial judge's reference to the Hebron

massacre,* while arguably a legitimate effort to draw a proper

expert opinion from Yeffet, could also have improperly

suggested to the jury that, if "very good security on the West

Bank" could not prevent the Hebron massacre, then the Pan

Am hijacking would have occurred even had Pan Am fulfilled

its promises of improved security. The trial judge

compounded this error when, in response to Yeffet's

contention that Pan Am should have had more armed guards

surrounding the plane on the tarmac, the district court stated:

THE COURT: [Y]ou are an expert in this field, but I have

flown and I am sure other people have flown. I don't have any

recollection of having seen armed guards in most of the

airplanes I have flown in that are flown by airlines. What I am

asking you is this: As of September 5, 1986, was it common

practice for airlines at that time to have armed guards, their

own paid armed guards in the terminal. in the airport?

THE WITNESS: They had armed guards -

THE COURT: But were they employed by the airlines or

were they soldiers?

THE WITNESS: No, they were from the local authorities, and

some of them that had air marshals, they were on the spot

‘On February 24, 1994, an armed gunman killed a number

of people in a mosque in Hebron on the West Bank.

Apdx: A - 37

until their aircraft took off.

THE COURT: But would 1t be fair to say that most airlines at

September 5, 1986, did not employ armed guards to patrol the

airline terminals? Is that true?

THE WITNESS: I cannot say most of them employed. But |

can say that the local authorities, with the cooperation with

the head of security of those airlines, they provide them

armed guards to secure their flight.

THE COURT: But normally the armed guards, the people

who patrol the terminals, are supplied by the local military

authorities or local civilian authorities?

THE WITNESS: Correct.

THE COURT: At least that is what I have seen, and tell me if

I am right.

THE WITNESS: You are correct.

Id. at 1062-63. Apparently disbelieving Yeffet's expert

opinion that Pan Am should have employed armed guards and

that such armed guards may have prevented the hijacking, the

trial judge continued to question Yeffet during plaintiffs’

direct examination:

THE COURT: What I am saying to you is-and I have asked

you the question five times and I have gotten the same answer

all five times--the one thing you say Pan Am should have had

was more armed guards--at least five, as | heard your

testimony.

Apdx. A - 38

THE WITNESS: Yes, your Honor, upwards of six.

THE COURT: How long would it take a hijacker with a

machine gun to dispatch five armed guards?

THE WITNESS: What do you mean to dispatch? 4

THE COURT: Shoot them.

THE WITNESS: All this action is a question of seconds.

THE COURT: I know.

THE WITNESS: Now, if I have armed guard professionals,

some of them with uniforms, some of them without uniforms,

and they are aware why they are in the position, once the

terrorists are coming with their car, they might kill one or

two, but we still have professional armed guards to give the

answer to kill the four terrorists.

THE COURT: It depends how good they are. If they are as

good as these highly trained, specialized commando types

that El Al employs, I guess you have one scenario. But if they

are ordinary soldiers, you have another?

THE WITNESS: They [the security persons at Karachi] are

not even soldiers, your Honor.

THE COURT: But these people testified that they are highly

trained commando types, are they not?

THE WITNESS: When any other airlines decides [sic]

already to have armed guards-

THE COURT: I think I have your opinion.

Id. at 1069-70. The trial judge's own experiences with

airlines and his opinion as to whether El Al commandos or

Apdx. A - 39

ordinary soldiers would have prevented the Pan Am hijacking

are plainly of no relevance to the jury. We cannot say that the

above colloquies reflected "questioning [limited] to inquiries

necessary to clarify ambiguities, correct misstatements, or

obtain information necessary to make rulings," Manko, 979

F.2d at 905, and indeed they approach the tone a cross-

examination on behalf of defendants. Moreover, the trial

judge's questioning went to the issue of causation, upon

which the jury ultimately found in favor of defendants.

During the six week trial and many thousands of pages of

testimony, however, the district court did not otherwise

engage in improper questioning in front of the jury. Although

a very close issue, upon "examination of the entire record" in

this particular case, see Manko, 979 F.2d at 905-906, and

given the trial judge's otherwise proper conduct in front of the

jury throughout the entire six-week trial, we decline to vacate

the judgment of the district court based upon the trial judge's

questioning of Yeffet.

Plaintiffs also point to a number of remarks made by

the trial judge to counsel out of the jury's presence as

evidence of the district court's bias against plaintiffs. For

example, after the trial judge forbade one of the plaintiff's

lawyers from speaking and suggested that he go to "a trial

practice school,” the judge stated to another plaintiff's lawyer:

THE COURT: If you want to improve his career, tell the firm

to send him to a trial practice seminar so he learns something

Apdx. A - 40

about the rudiments of asking a question, the rudiments of

what arguments to make to a judge, what arguments not to

make to a judge. . . .

[COUNSEL]: I don't want to focus on a narrow issue. |

understand what you are saying. | understand. I have heard it.

THE COURT: He doesn't know how to try a case, in my

view.

[COUNSEL]: I want you to know that, with my experience

and my confidence in [plaintiffs' counsel], nothing has been

done to undermine that confidence in him.

THE COURT: That may be. That may only prove that you are

more obdurate than you should be. Frankly, when I was a

partner at a law firm, I took criticisms of federal judges more

seriously than that and | paid more attention to it, which is

probably why | learned more than you did. The fact of the

matter is that if a federal judge with my trial experience and

my judicial experience and my record as a practicing lawyer

before I came here, if that opinion is so unimportant to you,

maybe that explains why he is as bad as he is.

Tnal Tr. at 2780-82. Other similar comments, also outside the

jury's presence, are cited by the plaintiffs.

To be sure, the foregoing remarks are tough medicine,

not of the sort an attorney !‘kes to hear, and perhaps their

message--that the trial attorney's performance was below par

and in serious need of improvement--could have been

conveyed in a less acerbic manner. If the remarks had been

Apdx. A - 41

made in the jury's presence, we would be concerned that they

might have been taken by the jury as reflecting an opinion by

the judge on the merits of plaintiffs' case. But the jury did not

hear them and we will not second-guess the tral judge's belief

that the attorney's performance warranted the rebuke. In our

view, the remarks are indicative not of judicial bias, but rather

of the judge's legitimate concern over the attorney's

performance at trial. Because the remarks were made outside

of the jury's presence and did not otherwise impede the

fairness of the proceedings, they did not influence or

prejudice the trial in any way, and we therefore decline to

vacate the district court's judgment on that basis. Cf. Santa

Maria, 81 F.3d at 275 (ordering new trial because of trial

judge's prejudicial comments in jury's presence).

V. Expert Witness

Finally, all of the plaintiffs claim that the district

court's refusal to qualify plaintiffs’ proffered perimeter

security expert--Gary Stubblefield--was an abuse of that

court's discretion. "The admission or exclusion of expert

testimony rests soundly in the broad discretion of the trial

court." Lockerbie II, 37 F.3d at 824; see General Elec. Co. v.

Joiner, --- US ---, ---, 118 S.Ct. 512, 317, 139 L.Ed.2d 508

(1997) (same). Stubblefield had never been a security officer

with an American commercial airport or American airline,

had never performed a threat assessment of an airport, had

performed no recent consulting work., and had received no

Apdx. A - 42

Me ah cc

training with respect to airport or airline security. In these

circumstances, we cannot say that the district court abused its

discretion in refusing to qualify Stubblefield as an expert.

Conclusion

We affirm the judgment of the district court for the

reasons set forth above. Each party shall pay its own costs.

Apdx. A - 43

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE HIJACKING OF PAN : M.D.L. 724 (JES)

AMERICAN WORLD AIRWAYS, -

INC. AIRCRAFT AT KARACHI : JUDGMENT

INTERNATIONAL AIRPORT.

PAKISTAN ON SEPTEMBER 5, : (AEH-4562)

1986

AJAY PATEL, a minor, by and

through his Guardian Ad Litem,

PARVATI PATEL; and PARVATI

PATEL, : 87 Civ. 2993 (JES)

Plaintiffs,

PAN AMERICAN WORLD

AIRWAYS, INC., a corporation,

and DOES | through 50, inclusive,

Defendants.

AVANI B. SHAH and RUPAL B.

SHAH, minors, by their Guardian:

Ad Litem, BIPIN M. SHAH, BIPIN :

Apdx. B - 44

M. SHAH,

Plaintiffs. 87 Civ

PAN AMERICAN WORLD

AIRWAYS, INC., a corporation,

and DOES | through 50, inclusive,

Defendants.

AISHA BEGUM and

MEHBOOB KAHN,

Plaintiffs. ‘ Sri:

VS.

PAN AMERICAN WORLD

AIRWAYS, INC., a corporation,

and DOES | through 50, inclusive,

Defendants.

GAYATRI DAVE and GARGI

DAVE, minors, by their guardian

Ad Litem, VINOD DAVE;

VINOD DAVE,

2991 (JES)

3686 (JES)

Plaintiffs, - 87 Civ. 3975 (JES)

VS.

Apdx. B - 45

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations;

PAN AMERICAN WORLD

SERVICES, INC., a corporation:

and DOES | through 50, inclusive,

Defendants.

SANJAY PATEL, a minor, by and

through his Guardian Ad Litem,

C.N. PATEL: C.N. PATEL,

Plaintiffs, : 87 Civ. 3687 (JES)

VS.

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations;

PAN AMERICAN WORLD

SERVICES, INC., a corporation;

and DOES | through 50, inclusive,

Defendants.

RANJANBEN PATEL and

JAYSHREEBEN PATEL, minors,

by and through their Guardian

Ad Litem, PRAVIN PATEL; ~

PRAVIN PATEL,

Plaintiffs, : 87 Civ. 7488 (JES)

Apdx. B - 46

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations;

PAN AMERICAN WORLD

SERVICES, INC., a corporation,

Defendants.

KHANJAN DALAL; KALPESH

DALAH; KALPANA SHAH;

DEEPALI DESAI; MEHUL SHAH; :

UTPALA M. DESAI; MILIND

SHARAD DESAI; NARENDRA R.

DESAI; SWATIN. DESAI,

Plaintiffs, : 87 Civ. 7490 (JES)

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations;

PAN AMERICAN WORLD

SERVICES, INC., a corporation,

Defendants.

GANGA BAHN; FATHER

ANTHONY THEODORE; REKHA -

ADVANI; POONAM ADVANI;

Apdx. B - 47

DINESH ADVANI; KISHIN

ADVANI; TARA PATEL, as

personal representative of the

estate of KUVAR PATEL,

deceased; MRUGESH PATEL,

SANJAY PATEL, a minor, by his

father and natural guardian

C.N. PATEL; C.N. PATEL,

individually, DAHIBEN PATEL

and DILIP PAREKH,

Plaintiffs, : 87 Civ. 0547 (JES)

VS.

PAN AMERICAN WORLD

AIRWAYS,

Defendants.

—

NAGIN PATEL, TERA PATEL,

SATISH PATEL, NATHUBAI

PATEL, GOVIND PATEL,

CHOTUBHAI PATEL, JAMNA

PATEL, GANGA PATEL,

Plaintiffs >: 87 Civ. 9108 (JES)

VS.

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations;

Apdx. B - 48

PAN AMERICAN WORLD

SERVICES, INC., a corporation,

Defendants

FARAIDOON OSHTORY.

Plaintiffs, - §7 Civ. 2990 (JES)

VS.

PAN AMERICAN WORLD

AIRWAYS, INC. and PAN

AMERICAN WORLD

SERVICES, INC.,

Defendants.

MANJULA S. PATEL, Indtvidually :

and as Guardian Ad Litem for

MEHUL PATEL, a minor, and as

Heir at Law to SURENDRA

PATEL, deceased, SANGITA

PATEL, NIKITA PATEL,

Individually and as Heirs at Law

to SURENDRA PATEL, Deceased

and MANJULA S. PATEL, as

Administrator of the Estate of

SURENDRA PATEL, Deceased,

Plaintiffs, : 87 Civ. 2996 (JES)

Apdx. B - 49

VS.

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations:

PAN AMERICAN WORLD

SERVICES, INC., a corporation,

Defendants.

BAKUL and VASANTI SHAH.

Plaintiffs, : 87 Civ. 3690 (JES)

VS. \

PAN AMERICAN WORLD

AIRWAYS, INC., a corporations:

PAN AMERICAN WORLD

SERVICES, INC., a corporation,

Defendants.

HARA GOPAL; HADI ALI RIZVI: :

MRS. HADI ALI RIZVI; NIGAR

ZEHRA RIZVI; FARHANA

RIZVI; PUSHPAVATHI

MURAKONDA; HANSA

- MERCHANT; KANKUBEN

GALA; JASWANTIBEN SHAH

and JIGHISHA H. SHAH, Minors

Apdx. B - 50

by and through HARSHAD SHAH,

their Father; MRS. FARHAT

HUSSAIN, MABIHAH Y-.

HUSSAIN and HAMEED

HUSSAIN, Minors by and through

MRS. FARHAT HUSSAIN, their

Mother; ARMISH BHAETT;

JAYABEN R. SANGHANI,; MRS.

JAYABEN SANGHANI,;

JAY GRANTIER; SAID FAIZ

KIDWAI,; DR. SUHAIL; SUHAIL

HAMED; HASSAN SYED; M.

JAYED; R.A. AHMED;

AMTELIVA IBRAHIM; MALik

NETRAKANTI; IMRAN ALT;

KHADIYA ALI;

Plaintiffs, : §7 Civ. 3692 (JES)

PAM AMERICAN WORLD

AIRWAYS, INC.; THE BOEING

COMPANY; THE BOEING

COMMERCIAL AIRPLANE

COMPANY; B.F. GOODRICH

CORPORATION; and PAN

AMERICAN WORLD

SERVICES, INC.,

Defendants.

Apdx. B - 51

MAZHERULLAH BAIG;

KHALIDIA BAIG; SHRIKANT

PATEL; SHATEL PATEL; HARA

GOPAL; KUSUM NAIK; :

HARSHAD SHAH; MOHAMMED :

HUSSAIN; MADHAVDAS

MERCHANT: ROBERTO MUNOZ :

FLORES; DELFINA ROQUE DE

MUNOZ; FRANCISCO JAVIER

DE MUNOZ; MICHAELA DE

MUNOZ; RICARDO DE MUNOZ

MARIANA DE MUNOZ;

individually and as survivors of

RICARDO MUNOZ ROSALES,

deceased: ORALIAGARICA DE

ALVAREZ; AMICUTA DE

ALVAREZ; AMELIA DE

ALVAREZ; ELISA DE

ALVAREZ; JOSE ANTONIO DE

ALVAREZ; ORALIA DE

ALVAREZ; NORMA DE

ALVAREZ; JONATHAN DE

ALVAREZ; JULIO CAESAR DE

ALVAREZ; individually and as

survivors of JOSE ALVAREZ

LAMAR NUNEZ, deceased; ;

Plaintiffs, : 88 Civ. 0299 (JES)

Apdx. B - 52

VS.

PAM AMERICAN WORLD

AIRWAYS, INC.; THE BOEING

COMPANY: THE BOEING

COMMERCIAL AIRPLANE

COMPANY; B.F. GOODRICH

CORPORATION; and PAN

AMERICAN WORLD

SERVICES, INC.,

Defendants.

SURINDER SINGH AHLUWALIA, :

Individually and Guardian Ad Litem :

for JEET INDER SINGH; a minor;

NEELAM AHLUWALIA;

HERMINDER SINGH; CYNTHIA :

BUTHELLO; PARAG SHETH;

FATHER ANTHONY THEODORE::

SAID FAIZ KIDWAI; SUHAIL

QAMAR; HARISH CHANDRA

PATEL and MADHUKANTA

PATEL, ;

Plaintiffs, : §87 Civ. 6570 (JES)

VS. :

PAN AMERICAN WORLD

AIRWAYS, INC. and PAN

Apdx. B - 53

AMERICAN WORLD

SERVICES, INC.,

Defendants.

SADANAND SINGH, Individually

and as Executor of the Estat of

Kala Singh, Deceased; SAMIR

SINGH, by and through

SADANAND SINGH, Guardian Ad -

litem; KALPANA SINGH,

by and through SADANAND

SINGH, Guardian Ad Litem,

Plaintiffs,

VS.

PAN AMERICAN WORLD

AIRWAYS, INC., a New York

corporation, PAN AM WORLD

SERVICES, INC., a Florida

corporation; ALERT

MANAGEMENT SYSTEMS, INC., :

a Florida corporation,

REKHA P. KUMAR. as Sole Heir

of RAJESH KUMAR, deceased,

and MAHENDRA R. PATEL.

Apdx. B - 54

87 Civ. 3108 (JES)

Admunistrator of the Estate of

RAJESH KUMAR.

Plaintiffs. S7 Civ. 2999 (JES)

PAN AMERICAN WORLD

AIRWAYS, INC. and PAN

AMERICAN WORLD

SERVICES, INC.,

Defendants.

sengeeseennicetinignainlpcetarntehadatinie _X

VINOD DAVE and NIRANJANA

DAVE, |

Plaintiffs, : 88 Civ. 0929 (JES)

VS.

PAN AMERICAN WORLD

AIRWAYS, INC., a corporation, |

and PAN AMERICAN WORLD

SERVICES, INC., a corporation,

and DOES | through 50, inclusive,

Defendants.

This multi-district litigation, comprised of a number

of individual constituent actions, came on for trial before this

Apdx. B - 55

Court and a jury, Honorable John E. Sprizzo, United States

District Judge, presiding; and the issues o; liability having

been duly tried commencing on March 8, 1994: the jury

having rendered a special verdict on April 14, 1994. and this

Court having determined as a result of that verdict that

Defendant, Pan American World Airways, Inc. is not liable

for damages in excess of the applicable limitation on lability

imposed by the Convention for the | nification of Certain

Rules Relating to International Transportation by Air, done at

Warsaw, October 12, 1929 (the "Warsaw Convention"): and

Defendant; Pan American World Airways, Inc.. hav ing

represented that it will not contest judgments entered in the

amount of the applicable limitation on liability imposed by

the Warsaw Convention. less any advances previously made

by Defendant to Plaintiffs.

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED, that the Plaintiffs identified below recover of

Defendant, Pan American World Airways, Inc., the follow Ing

amounts:

U.S.D.C./S.D.N_Y

Plaintiff(s Amount ae

Ajay Patel $66.548 90 S7 ( IV. 2993

Parvati Pate] $75.000 87 Civ. 2993

Avani B. Shah and $75.000 87 Civ. 299]

Bipin M. Shah, jointly

Apdx. B - 56

Rupal B. Shah and

Bipin M. Shah, jointly

Aisha Begum and

Mehboob Khan,

“

Gayatri Dave, Vinod

Dave, and Niranjana

Dave, jointly

Gargi Dave, Vinod

Dave and Niranjana

Dave, jointly

Sanjay Patel and $12,936.50

C.N. Patel, jointly

Jayshreeben Patel and $75,000

Pravin Patel, jointly

Ranjanben Pate! and

Pravin Patel, jointly

Deepali Desai

S.D.C/S.D.NLY.

No.

‘iv. 299]

‘iv. 3686

‘iv. 3975

‘Vv. 3687

‘iv. 7488

7490

Plaintiffis) Amount

Kalpesh Dalal and $75,000

Khanjan Dalal, jointly,

as survivors of Trupti

Dalal, deceased

Dilip Parikh $5,722.17

Tara Patel, Nathubai $75,000

Patel, Govind Patel,

Chotubhai Patel, Jamna

Patel and Ganga Patel,

jointly, as survivors

of Kuvar Patel,

deceased

“

fF)

‘sai

Nagin Patel, 000

Tara Patel and

Satish Patel,

jointly, as survivors

of Rajesh Kumar,

deceased

Faraidoon Oshtory $68,748.20

Apdx. B - 58

U.S.D.C/S.D.N.Y.

Civ. No

87 Civ. 7490

87 Civ. 0547

87 Civ. 9108

87 Civ.9108

87 Civ. 2990

U.S.D.C./S.D.N.Y.

Plaintiffis) Amount Civ. No.

Manjula S. Patel, $225,000 87 Civ. 2996

individually, as

guardian ad litem and

as heir and administrator

of the estate of Surendra

Patel, deceased; Sangita

Patel and Nikita Patel,

individually and as

heirs of Surendra Patel,

deceased; and Mehul

Patel, as heir of Surendra

Patel, deceased

Bakul Shah $75,000 87 Civ. 3690

Father Anthony $10,000 87 Civ. 6570

Theodore

Sadanand Singh, $300,000 87 Civ. 3108

individually and as

executor of the estate

of Kala Singh,

deceased; Samir Singh

and Kalpana Singh

Apdx. B - 59

U.S.D.C/S.D.N.Y

Plaintiffis) Amount Civ. No.

Nabihah Y. Hussain $75.000 87 Civ. 3692

and Mrs. Farhat

Hussain, jointly

Hameed Hussain and $75.000 87 Civ. 3692

Mrs. Farhat Hussain.

jointly

Mohammed Hussain $75.000 87 Civ. 3692 and

and Mrs. Farhat 88 Civ. 0299

Hussain, jointly

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that the Complaints of the Plaintiffs identified

below be dismissed on the merits:

U.S.D.C./S.D.N.Y.

Plaintiffis) Civ. No.

Rekha P. Kumar, as 87 Civ. 2999

heir of Rajesh Kumar,

deceased, and Mahendra

R. Patel, as administrator

of the estate of Rajesh

Kumar

Vinod Dave and 88 Civ. 0929

Niranjan Dave

Apdx. B - 60

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that Defendant, Pan American World Airways,

Inc., be and is allowed costs as the prevailing party.

DATED: New York, New York,

/s/ 3-24-97

/s/ John E. Sprizzo

UNITED STATES DISTRICT JUDGE

THIS DOCUMENT WAS ENTERED ON THE DOCKET

ON 4s/ 4/1/97

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ed Fe ES AE Ps UNL ea OR ERE Eo x

IN RE HIJACKING OF PAN AMERICAN

WORLD AIRWAYS, INC., AIRCRAFT M.D.L.724(JES)

AT KARACHI INTERNATIONAL (All Cases)

AIRPORT, PAKISTAN ON Verdict Form

SEPTEMBER 5, 1986

|) Do you find by a fair preponderance of the evidence that

Pan American World Airways, Inc. Engaged in wilful

misconduct, as defined by the Court, in connection with the

Alert Security Program?

go Fo. a NO __

Apdx. B - 61

2) Do you find by a fair preponderance of the evidence that

Pan American World Airways, Inc. Engaged in wilful

misconduct, as defined by the Court. by flying into Karachi

International Airport on September 5, 1986?

YES NO _X

If the answer to neither Question #1 nor Question #2 is YES

proceed no further.

3) If the answer to Question #1 is Yes. do you find by a fair

preponderance of the evidence that the wilful misconduct of

Pan American World Airways, Inc., in the connection with

the Alert Security Program, was a proximate cause of the

hijacking?

r YT r

YES NO _X

Pa eS ea ae. e eetscm tt) so Von i ee a et eo ae

iD ai (itv 1OVVUT TV \Z UL STOTT 'm IS FUSS, UO vou tii Uy a Trai

Bremond osama of il ...; J... Se a) ES | ae, ep mee er af

t PepYy i ia VY VIUiIOuUvracnce titel Ciro VWVTTTradT AIMITOVUUITIUCT OT

i ait 4 341IVI TUG FY UIT Pte ways Lit Uy arytr ee it IVadiaciit

ee a, | ee ee. poe — om ~ LOe<z eee ee ok

LIINWVITIatIVirar 4.it it Vit IV PICTOU Pe A i JOU Was a VIVATI Tatu

cause-ofthe-hiaecking?

yTr Y

YES NO

/s/Susanne S. Greed /s/4-14-94

Signature (Foreman of the Jury)

Apdx. B - 62

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF NEW YORK

FORTY LISTED PLAINTIFFS’ MEMORANDUM IN

OPPOSITION TO PAN AM’S MOTION TO

TRANSFER UNDER 28 U.S.C. §§ 157(b)(5) OR 1404(a)

FOR A CONSOLIDATED LIABILITY TRIAL

(Excerpts Beginning on Page 21)

D. FORTY LISTED PLAINTIFFS’ TWELVE

CENTRAL DISTRICT OF CALIFORNIA

ACTIONS SHOULD BE REMANDED TO

THE CENTRAL DISTRICT OF

CALIFORNIA UNDER 28 U.S.C. § 1407 (a)

AND M.D.L. RULE 14(b)&(c) FOR TRIAL.

In part, 28 U.S.C. § 1407(a) provides:

“Each action so transferred shall be remanded by the

panel at or before the conclusion of such pretrial

proceedings to the district from which it was

transferred . . .: Provided, however, That the panel

may separate any claim... and remand any . . . such

claims before the remainder of the action Is

remanded.”

(emphasis added) Accord, M.D.L. Rule 14 (b)&(c). Forty

Listed Plaintiffs request that this court remand their twelve

actions to California for trial. Should this court disagree,

Forty Listed Plaintiffs request that this court, at least, remand

all of their state law claims and all of their damage claims to

California for trial.

Apdx. C - 63

DATI

; ‘

, ’ \?

' 1) 4

An r al \!

{)4 ;

1+ /( i}

ty Listed

rial in the (4

107(a) and M.D]

rt ? , r .

‘ sl uit -

> :

ry ’ t ry rier } f{sunde ®

i kis aL TT Yul iv ee Indey on \ ».{

+} ‘ | } ¢ «3 | cr

’ ry iY ’ ; : i. , 1 ’

nus, LIS COUP SI Uidi Frespec ine wisnes of tf

) ‘ " se vi th, six " r .

Plaintiffs and remand thet \ e actions tor

S (

‘ntral Dis ler 28 |

Rule

‘

l4¢bj)Ac(c)

alifornia

_—

> 1QOQR

BY Daniel ¢ atl l

| . ;

ys | t } TT

: wm i ‘ Vi

ae |

oe 2 f,

‘ ‘

ry 4

ADU A ( ~?

(This order of the District Court was contained in V olume

3 of the Joint Appendix filed with the Court of Appeals

for the Second Circuit beginning on Page 1110.)

IN RE HIJACKING PAN

AMERICAN WORLD

AIRWAYS, INC. AIRCRAF I MDL 724 (JES)

AT KARACHI INTERNATIONAI (ALL CASES)

AIRPORT, PAKISTAN ON ORDER

SEPTEMBER 5, 1986

- /

¥)

, 4

-, —~

(This order of the District Court was contained in Volume

3 of the Joint Appendix filed with the Court of Appeals

for the Second Circuit beginning on Page 1213.)

(Partial Document)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE HIJACKING OF PAN

AMERICAN WORLD M.D.L. 724

AIRWAYS, INC. AIRCRAFT . (JES)

AT KARACHI INTERNATIONAL - JOINT PRE-

AIRPORT, PAKISTAN ON | TRIAL ORDER

SEPTEMBER 5, 1986

= eet

THIS DOCUMENT FILED IN (CC-7278)

ALL ACTIONS (MM-0143)

The parties having conferred among themselves and

with the Court pursuant to Fed.R.Civ.P. 16, now therefore the

following statements, directions and agreements are adopted

as the Joint Pre-Trial Order herein:

(1) JURISDICTION -- VENUE:

The jurisdiction of this Court is invoked

pursuant Section 1331 of Title 28 United States Code and the

Apdx. C - 67

. _

Convention for the Unification of Certain Rules Relating to

International Transportation by Air (“Warsaw Convention”),

49 Stat. 3000, T.S. 876 (1934), reprinted at note following 49

U.S.C. App. § 1502. In a number of constituent actions the

jurisdiction of this Court is also invoked pursuant to Section

1332 of Title 28 United States Code. The jurisdiction of this

Court 1s not disputed.

Venue before this Court for coordinated and

consolidated pre-trial proceedings was initially selected by the

Judicial Panel on Multidistrict Litigation, pursuant to an order

filed April 7, 1987. Pursuant to an order of this Court dated

December 13, 1993, and filed on December 16, 1993. all

actions have been transferred to this Court. pursuant to Title

28 United States Code, § 1404(a), for the trial of all common

liability issues, including all subsequent appellate procedures,

and all actions so transferred to this Court have been

consolidated with the related cases originally filed in this

Court for a joint liability trial, pursuant to Fed. R. Civ. P.

42(a).

Apdx. C - 68

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.