# Petition for Writ of Certiorari — Singh v. Pan American World Airways, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1491%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1142 ## 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 a APPELLATE ADVANTAGE 4264 N. OAK TRAFFICWAY@KANSAS CITY, MO 64116@816-453-2424 SBEST AVAILABLE COPY ho 2 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? il 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. iV 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 V1 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 1X / 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 Article 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 Xl 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, 2 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 4 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 6 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 I 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 7 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 9 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.” 10 mt cveaicecentisostca welll il 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 1] “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. i) 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. 13 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 14 j j 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 15 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 16 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 17 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 18 ne wept homie Ae P| : : 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 19 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.” 20 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. oe i 4 3 | 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, if 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, 3 £ i : ; | 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 4 4 ' 3 i i ; j 4 a : 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. x 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, ? At “ 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 ‘iv. 3975 ‘Vv. 3687 ‘iv. 7488 ‘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 RS Se ee lemma a © oe yee —— a Nan | gene | 4 i ait 4 341IVI TUG FY UIT Pte ways Lit Uy arytr ee it IVadiaciit ee a, | ee ee. poe — om ~ LOe : 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 I ) ‘ " 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 -, —~ a , (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 xX 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1491%3A1. Public record. Not legal advice.