# Opposition Brief — Pan American World Airways, Inc. v. Pagnucco

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1126

## Text

aa Roprems Cowt, U.S.

(4) FILED
No. 94-952 \~/

DLE eT 1994

IN THE OFFICE OF TRE ELERK

Supreme Court of the Hnited States

OCTOBER TERM, 1994
>

PAN AMERICAN WORLD AIRWAYS, INC., and
ALERT MANAGEMENT SYSTEMS, INC.,

Petitioners,

JUDITH A. PAGNUCCO, DONA BARDELLI
BAINBRIDGE, MOLENA A. PORTER, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Lee S. Kreindler *

Steven R. Pounian

James P. Kreindler
KREINDLER & KREINDLER
100 Park Avenue

Lee S. Kreindler New York, New York 10017
Steven R. Pountan (212) 687-8181

James P. Kreindler

Frank H. Granito, Jr.
Michel F. Baumeister
Frank H. Granito, IIl

On the Brief:

*Counsel of Record

Attorneys for Respondents Judith A. Pagnucco,
Dona Bardelli Bainbridge, Molena A. Porter, et al.

December 21, 1994

i
QUESTIONS PRESENTED

1. In a Warsaw Convention case, where the jury was prop-
erly charged, without objection, on the issues of both wilful
misconduct and causation, on which there is no conflict
among the circuits, did the district court commit any error in
the admission or exclusion of evidence which so prejudiced
the defendants as to require a new trial?

2. After a hard-fought trial lasting three months and a ver-
dict for the plaintiffs on wilful misconduct and causation,
does a careful, multi-layered, discussion of evidentiary ques-
tions by the court below, affirming the district court for sev-
eral different reasons, with supporting evidence to show that
even if there had been error it was harmless, constitute the
resolution of disputed fact in deprivation of the right to jury
trial?

ll

TABLE OF CONTENTS

PAGE
QUESTIONS PRESENTED...............:.00066.,... i
TABLE OF AUTHORITIES ........................... v
STATEMENT OP THE CASE............<-cccccesss... ]
FORGROTIGE TOGOU 6 <5 «5s oecevdacsninase ee ]
PON con 60 vascnstvinsen sn ccimusedsleleinee ea eee 2

I. THE EXPLOSION AND THE INVESTIGATION 2
II. FAA SECURITY REGULATIONS ............... 3

III. AMENDMENTS AND EXEMPTIONS TO THE
ACSSP HAD TO BE IN WRITING............... 5

IV. WILFUL MISCONDUCT: PAN AM’S TOP
MANAGEMENT DIRECTED A POLICY OF
DECEPTION AND COST-CUTTING WHICH
DESTROYED EFFECTIVE SECURITY.......... 5

A. The “Alert” security program and surcharge 5

B. The appearance of security which didn’t
ONG on skisisdavidicsdtodbadee tee. 6

C. Cutbacks on money for UI ki ba sbiink dave 6

D. Abandonment of passenger baggage match
for interline baggage..................-...... 7

VI.

Vil.

ili

E. Denial of vital information to its pilots and
PE UE ic vin eriueusdsccnvevaseces

PAN AM’S KNOWLEDGE OF THE PROBABLE
CONSEQUENCES OF FAILURE TO PROVIDE
a Sk kt) ts

i cis wei bdecesiesavaenessecses

B. Abandonment of positive match would
permit unaccompanied bags .................

Soe PE OIE Si ucdscc cere eccccccccce.

D. Specific FAA warnings of impending
ISS CGGRNGL SS LAARS aed Nes es dwseccccee.

FLIGHT 103 REFLECTED THE GENERALIZED
INADEQUATE SECURITY CREATED BY
I Binks de tvecscevusssesscesvesoess

THE LOCKERBIE BOMB WAS IN AN
UNACCOMPANIED INTERLINE BAG FROM
AIR MALTA LOADED ON FLIGHT 103 IN
FRANKFURT BECAUSE OF PAN AM’S
FAILURE TO PERFORM A POSITIVE MATCH

ARR No ae od |

A. Defendants were given broad freedom to
eC eU ices deeksanvinseuseess a

i SINE IIUED, 5 cic cee vasccevecserceeess

ll a

PAGE

10

10

10

12

14

16

16

17

17

iV

D. The proffer of U. K. “regulations” .......... 22

IX. THE TRIAL COURT’S CHARGE TO THE JURY
ON WILFUL MISCONDUCT AND
CERT N Skil Sache Fibw eee dekldisioiekss 24

REASONS FOR DENYING THE WRIT............... 25

I. THERE IS NO CONFLICT BETWEEN CIRCUITS
AND THE TRIAL COURT’S DISCRETIONARY
RULINGS ON EVIDENCE WERE CORRECT... 26

A. There is no conflict between the court below
and any other circuit regarding the definition
of wilful misconduct and causation under the
Oe WN 9 ks bet 4) choco sinks ees os 26

B. The trial court’s discretionary rulings on
CVIGOMCS WETS COMMON i 5 oii kc ide coc vickdaades 27

1. The Government authorization defense 27

2. Defendants’ pattern of misconduct in
failing to provide mandated security
WR MII ish din os tke i dibiekcans 28

II. DISCUSSION IN THE MAJORITY OPINION
DID NOT CONSTITUTE THE RESOLUTION
OF DISPUTED FACTS IN DEROGATION OF
THE RIGHT OF TRIAL BY JURY ............... 30

oe t+, RERIRE STIRS ADRES Pa Ry Dirge i Pen eR GCE 30

FT Ee soa sh ceibel bxundcnt ecclesia, la

TABLE OF AUTHORITIES

Cases:

Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969),
cert. denied, 396 U.S. 1049 (1970)...............

In re Air Disaster at Lockerbie, 928 F.2d 1267 (2d
Cir.), cert denied, 112 S.Ct. 351 (1991)..........

In re Korean Air Lines Disaster, 932 F.2d 1475
(D.C. Cir.), cert. denied, 112 S.Ct. 616 (1991)...

Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990)..........
Jones v. Berry, 880 F.2d 670 (2d Cir. 1989)...........

Tug Ocean Prince v. United States, 584 F.2d 1151
(2d Cir. 1978), cert. denied, 440 U.S. 959 (1979)

United States v. Brennan, 798 F.2d 581 (2d Cir. 1986)

United States v. Daly, 842 F.2d 1380 (2d Cir.),
cert. denied, 488 U.S. 821 (1988) ..............-.

United States v. Diaz, 878 F.2d 608 (2d Cir.),
cert. denied, 493 U.S. 993 (1989) ............ toa

United States v. Smith, 727 F.2d 214 (2d Cir. 1984)...
Vinieris v. Byzantine Maritime Corp., 731 F.2d 1061 .

Statutes and Rules:

C0 Gs IIL occ cccessiccccccscenoccenensesne
BC BPG hohe even ditecdeeevadrécsnevedes
Peis s Ek. | Peer rr rrr ere TTT Ter eee
WE BRA aks ia a sic bee ea Sse eyes RE

SO UBS BUGGT vo cccciycvctcatiesinadccvcecsrcepese eves

PAGE

5, 28

5, 28

vi

PAGE
Aer ees he LUND hid a 50's ddd s bb ¥ deen b.dekaecca; 5, 28
er Mis WORN OIENOD ss osc ccccesscnccvivecccccesas 5, 28
SITING Cobo 0 es sis ide lee asdieerk ev edbude coon 27
EE sic cd cuidh ebdencersubeecddedcswacess ou, 21
a es Ey NE als Vuk 0 as gamer ech shaddebuniwla bs <vies 29

Convention for the Unification of Certain Rules
Relating to International Transportation by Air,
done at Warsaw, Oct. 12, 1929, 49 Stat. 3000,
reprinted at 49 U.S.C. App. § 1502 note......... l

BRIEF FOR RESPONDENTS IN OPPOSITION

Respondents Pagnucco, Bainbridge, and Porter respectfully
pray that the petition for a writ of certiorari filed in these
cases on behalf of defendants be denied.'

STATEMENT OF THE CASE

Proceedings Below

Wrongful death actions against Pan American World Air-
ways (Pan Am) and Alert Management Systems, Inc. (Alert)
were commenced in various federal courts and transferred
under 28 U.S.C. §§ 1404 and 1407 to the United States Dis-
trict Court for the Eastern District of New York before Chief
Judge Thomas C. Platt, Jr. for a consolidated trial on liability.

There were extensive pretrial proceedings. The district
court granted defendants’ motion to bar punitive damages
under the Warsaw Convention’ and the court of appeals
affirmed. Jn re Air Disaster at Lockerbie, 928 F.2d 1267 (2d
Cir.), cert denied, 112 S.Ct. 351 (1991). Over 180 depositions
were held in the United States, Germany, Scotland, England,
Sweden, and Switzerland. The trial was postponed several
times pending the release of key causation evidence from the
criminal investigation.

The consolidated liability trial, binding on all passenger
cases, commenced on April 27, 1992. Thirteen weeks later,
the jury, which had heard testimony from 58 witnesses, ren-
dered separate special verdict findings: that the defendants
were guilty of wilful misconduct; and that the wilful mis-
conduct was a proximate cause of the deaths (Tr. 6711;
JA 1432). Defendants did not object to the court’s charge on
wilful misconduct and causation (JA 3726-3735; App.la-3a).

I

Citation to the petition for certiorari will be to “Pet.”; citation
to the appendices to the petition will be to “Pet. App.” Citation to the
appendix to this brief will be to “App.”

2

Convention for the Unification of Certain Rules Relating to
International Transportation by Air, done at Warsaw, Oct. 12, 1929, 49
Stat. 3000, reprinted at 49 U.S.C. App. § 1502 note.

Three damages trials were then held resulting in verdicts of
$9,225,000, $9,000,000, and $1,735,000 respectively. The
jury reached a defense verdict on plaintiffs’ claims for pain
and suffering. Judgments were entered in the three actions.
(JA 454-459).

Defendant Pan Am did not move for judgment as a matter
of law under Fed.R.Civ.P. 50, their counsel conceding that
plaintiffs had presented sufficient proof of wilful misconduct
and causation.’ Defendant Alert’s motion for judgment as a
matter of law was denied with a written opinion. (JA 460-
472).

Defendants appealed to the court of appeals, which
affirmed the judgments with a dissent (Pet. App. 96a). Defen-
dants then petitioned for a rehearing with a suggestion for a
rehearing in banc which was denied except to the extent
stated in a revised majority opinion (Pet. App. la). Defen-
dants again petitioned for rehearing with a suggestion for
rehearing in banc, which was also denied. (Pet.App 89a).

Facts

I. THE EXPLOSION AND THE INVESTIGATION

On December 21, 1988, Pan Am Flight 103, a Boeing 747
flying at 31,000 feet from London to New York and Detroit,
exploded over Lockerbie, Scotland. The explosion and result-
ing crash killed all 259 persons on board and 11 on the
ground. (JA 615-16).

The destruction of Flight 103 gave rise to the world’s
largest murder investigation. The painstaking investigatory
work performed by the FBI, Scotland Yard, Scottish police
forces, the Royal Armament Research and Development

3 Pan Am’s lead counsel stated:

I never said they had no proof. . . . 1 didn’t even ask for a judg-
ment with respect to Pan Am because I think they have enough on
that issue to go to the jury. I’ve never said they had no case.
(JA 3450).

Establishment (“R.A.R.D.E.”), the Air Accidents Investiga-
tion Branch (“A.A.I.B.”) and German Police agencies deter-
mined that the Lockerbie bomb was contained in an
unaccompanied suitcase transferred to Pan Am Flight 103 in
Frankfurt from an inbound Air Malta flight.* This was cor-
roborated by specific proof adduced by plaintiffs.°

II. FAA SECURITY REGULATIONS

In April 1986, faced with an extreme terrorist threat to U.S.
commercial aviation, the FAA imposed extraordinary security
procedures under Section XV of the Air Carrier Standard
Security Program (ACSSP) at Frankfurt and London.
(JA 4017-19, 4185-87). The ACSSP had the force of law, set
a minimum standard (JA 4148-9, 4154),° and was incorpo-
rated in Pan Am’s Security Manual (JA 3818, 3934-4047).

The first extraordinary security requirement was the pas-
senger/bag match of Section XV C.1.(a), which required Pan
Am to:

Conduct a positive passenger/checked baggage match
resulting in physical inspection or noncarriage of all
unaccompanied bags. The carrier may use either physi-
cal match or administrative match, but, in either case, it
should be done in a way that passengers are aware of the
use of the procedures. (JA 4017).’

: JA 581, 629, 682, 744, 716-17, 2388-89, 2396, 2400, 2405-06,
2579, 2581-84, 2588, 2591, 2631, 2632, SA 172-77; Tr. 1970-71;
Tr. 2897, 2905-06.

$ See Fn 18, infra.

6 Because of its confidential and sensitive nature, the ACSSP was

not included in the published Federal Air Regulations. Nevertheless, the
ACSSP had the same status as an FAA regulation. A violation of an
ACSSP provision was, therefore, a violation of the FARs and a violation
of a regulation, including one in the ACSSP, constituted a violation of the
Federal Aviation Act, Section 610(a)(5). (JA 4149).

is Physical match meant baggage would be placed on the tarmac

for passengers to personally identify (JA 1713, 4190). Administrative
match used a checklist, either by computer or manually, to ensure that all

The regulation imposed two separate and distinct require-
ments; first, Pan Am was to match every checked bag with a
passenger who actually boarded. An unaccompanied suitcase
could then be carried only if subjected to “physical inspec-
tion,” which required that the bag be opened and the contents
searched by hand.®’ (JA 4033-35; JA 3282, 3273, 1683)°
(SA 209).

The ACSSP also required the airline to use a Ground Secu-
rity Coordinator (GSC) who would ensure that all security
requirements were met prior to flight departure, and advise

bags were accompanied by an identified passenger (JA 1713, 4204-05).
For interline bags, an administrative match required that the baggage tag
numbers be compared with the bag tag numbers on the claim ticket of
each interline passenger. (JA 557, 2674-5).

. Petitioner’s contention (pet.7, Fn 8) that “physical inspection”

could be done by x-ray is a misstatement since x-ray meets none of the
definitions in ACSSP “Physical Inspection Guidelines”, b and k,
(JA 4033-35; JA 3283; JA 209-10; JA 4189). The ACSSP expressly
required physical inspection of unaccompanied checked bags rather than
x-ray inspection because physical inspection was a far more thorough and
reliable method of detecting bombs. X-ray was permitted by another sec-
tion of the ACSSP, VIII, at lower security airports where the terrorist
threat was less (JA 3978, 4187) and for selectee’s bags where the bag’s
owner was present for questioning (JA 4201-2, 4264-5).

’ Petitioners mischaracterize the positive match procedure as “Pan

Am’s x-ray procedure” (Pet 6, 8); “its x-ray procedure” (Pet. 6); “its x-
ray inspection” (Pet. 6); and “its use of x-ray” (Pet. 7,9). They attribute
to plaintiffs a question they know is phoney, “whether Pan Am used x-ray
screening with knowledge that its use would probably result in injury”
(Pet. 9). And they purport to describe (at Pet. 5) “Plaintiffs’ Theory of
Intentional Rule Violation” as involving the “requirement that any unac-
companied bags be hand-searched, i.e. XV. C.1.(a) of the ACSSP.”

This falsely states both the XV.C.1(a) requirement, and plaintiffs’ case.
Positive match required that all bags be matched to passengers, and if no
passenger, then removal of the bag, and either noncarriage or physical
search before being carried. It was a matching requirement followed by
a physical search and certainly not an x-ray requirement. There was noth-
ing wrong with using x-ray so long as it was not a substitute for positive
match followed by physical search. What Pan Am did with respect to
interline bags, which were the prime threat, was to abandon the positive

the pilot-in-command of “all pertinent security information”,
including the presence of unaccompanied bags; that certain
passengers termed “selectees” face more stringent security
checks (JA 4199-4201); that parked aircraft be under constant
guard observation (JA 4018); that the airline train, test, and
supervise all capable personnel to perform screening func-
tions; and that security personnel were thoroughly familiar
with all screening requirements (JA 4206, 4209).

III. AMENDMENTS AND EXEMPTIONS TO THE
ACSSP HAD TO BE IN WRITING.

Federal regulations mandated that any amendments to or
exemptions from the ACSSP required a written application by
the airline and written approval by the FAA.'° Any changes
made had to promote “safety and the public interest”. /d. Pan
Am’s Chairman testified that Pan Am never received written
authorization from the FAA to substitute x-ray for passenger-
baggage match." (SA 198-203). The FAA had no authority to
orally amend or waive an ACSSP regulation. (JA 2039, 4167-
68). ACSSP XIV required that the FAA be notified in writing
by the airline of any change in procedures or implementation
procedures. (JA 4234-36).

IV. WILFUL MISCONDUCT: PAN AM’S TOP MAN-
AGEMENT DIRECTED A POLICY OF DECEP-
TION AND COST-CUTTING WHICH DESTROYED
EFFECTIVE SECURITY.

A. The “Alert” security program and surcharge

In May 1986 Pan Am announced its “Alert” security pro-
gram enacted in response to a sharp decline in international

match procedure entirely and simply put all interline bags through x-ray.
It was the abandonment of positive match that “would probably result in
injury” and not the use of x-ray.

» 14 C.F.R. §§ 11.25(b)(5), 11.27(e); 108.25(b)(c); 49 U.S.C.
§§ 1357(a)(2)(B), 1421(a)(6)(c).

ot Pan Am itself had repeatedly submitted written applications for

ACSSP exemptions, including a March 1988 request (denied by the FAA)
for “relief” from the Section XV requirements (including the passenger-

travel due to terrorist attacks. (JA 1550-51, JA 1562)). A
widely published advertisement signed by Pan Am’s Chair-
man of the Board and CEO announced that “Pan Am will ini-
tiate one of the most far-reaching security programs in our
industry. A program that will screen passengers, employees,
airport facilities, baggage and aircraft with unrelenting thor-
oughness.” (JA 479, 1563). At the same time, Pan Am created
a separate subsidiary corporation, Alert, to provide contract
security services for its flights. (JA 1550).

As part of the Alert program, Pan Am imposed a security
surcharge on international passengers ($5 one way or $10
round trip) to pay for the promised additional security mea-
sures. (JA 1581). The surcharge generated $18 million in
annual revenues for Pan Am.'? (JA 1581).

B. The appearance of security which didn’t exist

The surcharge money received was commingled with gen-
eral revenues and not earmarked for security. (JA 2993). Pan
Am’s Frankfurt and London Security Directors testified there
was no more money for security and observed no differences
in security before and after the surcharge (JA 1857; 1808).

Alert’s first President, Fred Ford, was fired after writing a
memo to Pan Am’s senior executives complaining that the
promised security program was not being put into effect and
that “now people are beginning to ask: What do I get for my
five dollar security surcharge?” (JA 1580-83). Ford testified
that Pan Am knowingly paraded untrained dogs as a “bomb-
sniffing” canine unit. (JA 1578).

C. Cutbacks on money for security

Pan Am repeatedly cut back on security to save money. It
routinely refused to hire sufficient personnel and systemati-
cally failed to train, supervise and warn GSCs and screeners,
bag match) for German domestic flights. (Tr. Ex. 56; JA 730 (JA. 1043-
44; 1050-62).

2 Ninety seven passengers on Flight 103 paid the $5 or $10 sur-
charge. (Ex. 119; JA 754).

as the ACSSP required. (JA 562-63, 1511, 1852-3, 1874-5,
1878, 1954, 2193-2211, 2213, 2274).

In June 1988, Pan Am’s management instructed Alert’s
Manager for Germany, Ulrich Weber, to sharply cut security
expenses in Frankfurt and refused to fund necessary training
of screeners. (JA 2192-97, 2207-08). Weber testified that Leu-
niger, the Pan Am Frankfurt station manager’s attitude toward
security was that it was “[a] waste of time” and should be
“(kJept to a minimum.” (JA 2206).

In October 1988, Huebner, Pan Am’s Security Director in
Frankfurt, wrote to Pan Am’s New York headquarters citing
the need for more security personnel. (JA 562-63). After
expressing his concern that “financial concerns were jeopar-
dizing the lives and safety of Pan Am passengers” (JA 1902),
Huebner was told by Pan Am management that “for financial
reasons the security staff has to be kept to a minimum.”
(JA 563 1954).

D. Abandonment of the fundamental passenger bag-
gage match for interline baggage.

Above all Pan Am violated the primary requirement of the
extraordinary security requirement: the passenger/baggage
match.

In April 1986, when the ACSSP extraordinary security reg-
ulations were first enacted, Pan Am established procedures in
Frankfurt and London to match interline bags with the bag-
gage claim check numbers of interline passengers who
checked in at the gate. (JA 557, 3304). Unaccompanied bags
received from other carriers were identified and not carried.
(JA 1925)

Top management, however, viewed the interline bag match
as “cumbersome” and “a problem” which caused delays and
cost the airline money. (JA 1925, 1927, 3283-4, 3305).

As a result in late 1986 top management decided to dis-
continue the interline bag match at extraordinary security

stations, starting with Athens and Rome in 1986, followed by
London in 1987 and Frankfurt in June 1988. (JA 2642-3,
3302).

Pan Am eliminated the threshold positive match process
entirely for interline bags, and substituted a system where
interline bags were x-rayed. (JA 974-75, 3275, 3302). This
violated XV.C.(1)(a) in two ways. First, the positive match
was abandoned. Second, x-ray examination did not meet the
“physical inspection” requirement for an unaccompanied bag
to be flown. Unaccompanied baggage from other airlines was
routinely loaded on Pan Am aircraft at Frankfurt and London,
in violation of XV C.1.(a). (JA 1681-83, 4192-93).

E. Denial of vital information to its pilots and
deceiving the FAA

Pan Am’s pilots were not informed of the abandonment of
the match procedure (JA 2021-2, SA 187-88). London gate
employees were told not to advise pilots of unaccompanied
bags because it “made the crews jittery” and caused flight
delays. (SA 166-67). Similarly, Frankfurt Alert personnel
were told not to communicate security problems to flight
crews because it resulted in delays. (JA 2201-03). Nor were
pilots advised that an x-ray procedure had been substituted for
positive match. Furthermore, although ACSSP XIV required
Pan Am to advise the FAA in writing of changes Pan Am
never advised the FAA that the interline bag match had been
discontinued. (JA 4234).

Pan Am’s station manager at Frankfurt, Leuninger,
instructed Alert’s Ulrich Weber to add security personne! dur-
ing FAA inspections to create the appearance of security
which did not otherwise exist. (JA 2214-2219). At an inspec-
tion shortly before Lockerbie, Alert sent a guard from the
front end of the airplane to the back so that FAA inspectors
would think that the airplane was properly staffed in both
places. (JA 2219-20). The district court, in denying Alert’s
Rule 50 motion, observed “that Alert knowingly cooperated
with Pan Am employees to disguise chronic understaffing and

noncompliance with FAA regulations at Frankfurt whenever
FAA inspections were expected so that they would not have to
provide more security.” (JA 469).

As a further deception, after the explosion, Weber ordered
that the Helsinki warning be backdated to give government
investigators the impression that the warning was timely dis-
seminated when received. (JA 2106-11).

V. PAN AM’S KNOWLEDGE OF THE PROBABLE
CONSEQUENCES OF FAILURE TO PROVIDE
EFFECTIVE SECURITY

For at least six years prior to the bombing, Pan Am was
repeatedly warned of bombs hidden in radios or other elec-
tronic devices; the grave risk of both unaccompanied and
interline bags; and the danger of reliance on x-ray as a screen-
ing device. (JA 497-98, 510, 521, 1633-9, 4048-4049, 4096-
97). ,

A. The KPI Report

In September 1986, Pan Am’s management received the
KPI Report from Israeli security experts commissioned to
review Pan Am security at various airports including Frank-
furt and London. (JA 482, 3311-13). KPI concluded that
“Cujnder the present security system, Pan Am is highly vul-
nerable to most forms of terrorist attack. The fact that no
major disaster has occurred to date is merely providential.”
(JA 483).

3 Petitioners ask why the majority opinion, below, fails to mention

Weber’s denial that he backdated the warning. (Pet. 25). The answer may
be that the original of the undated copy, which should have been date-
stamped when received, was put into evidence by the plaintiffs along
with backdated copies and testimony of four Alert employees who wit-
nessed the backdating (Koch, Christ, Schneider, Hoerr). The trial court
found that the back-dating of the warning “was evidence of conscious-
ness of guilt on the part of Alert for its part in the wrongful causation of
the crash.” (JA 470).

10

The Report specifically cautioned Pan Am of the risk of
unaccompanied bags, criticized Pan Am for its over-reliance
on x-ray and warned the airline that x-ray was “not recom-
mended” and “disqualified in principle” as a tool to screen
baggage for explosive devices. (JA 492, 497-98, 510, 514,
521, 3313). KPI advised Pan Am that a positive passenger/bag
match of all bags, including interline bags, must be conducted
to avoid a bomb attack. (JA 535-536, 3313).

B. Abandonment of positive match would permit
unaccompanied bags

Pan Am management knew their decision to abandon pos-
itive match and substitute an x-ray procedure would permit
unaccompanied interline bags, which they knew presented the
greatest danger of a bomb explosion, on their flights.
(JA 1865, 1870, 3057-58, 3060, 3314-15, 3924).

C. Prior fatal bombings

In 1983 a Pan Am 747 leaving Rome for New York was the
target of a bomb inside an unaccompanied interline suitcase.
(JA 4194). In 1985 a bomb in an unaccompanied interline bag
exploded on an Air India flight over the North Atlantic,
killing the 329 persons aboard (JA 4194). The bomb suitcase
had been x-rayed. The official Indian Investigation report rec-
ommended that interline baggage be matched before loading
and cautioned that x-ray “has its own limitations and is not
fool proof. Some explosives hidden in radios, cameras, etc.
may not be readily detected by such a machine.” (JA 1642-
1644).

D. Specific FAA warnings of impending bombings

In July 1988, following the shootdown of an Iranian Air-
lines Airbus by the U.S.S. Vincennes, the FAA warned Pan
Am of an imminent terrorist attack against a U.S. air carrier.
(JA 1614-15; 1656-60). The entire aviation community was
on alert. (JA 1656-67).

In a series of extraordinary warnings in late 1988, Pan
Am’s management was warned of the place, time and manner
of an impending terrorist bomb attack. (JA 564-68, 572-73,
1661-63, 1666-68).

On November 17, 1988, only five weeks before Lockerbie,
Pan Am received FAA Security Bulletin 88-19 (JA 564) warn-
ing that in a raid on a mid-east terrorist group not far from
Frankfurt police discovered a bomb built into a Toshiba radio
cassette player, obviously intended for use on aircraft.
(JA 564-66; 1661-63). The Bulletin cautioned that the
Toshiba device “was very difficult to detect by the use of nor-
mal x-ray” and stated that the requirements of ACSSP XV
C.1. must be “rigorously applied”. (emphasis added).
(JA 564-66).

Still Pan Am did not match interline bags! Moreover, vir-
tually all of the security staff was not informed of the warn-
ings or advised to look out for radio cassette players.
(JA 2106-08, 2134-35, 2150, 2176-2177, 2283-2286, 2347-
48, 3906-08).

On December 7, 1988, two weeks before Lockerbie, Pan Am
was issued Security Bulletin 88-22, which advised of a tele-
phone warning in Helsinki that a Pan Am flight from Frank-
furt to the United States would be bombed. (JA 572-73,
2106-2110). This Bulletin repeated the warning from Security
Bulletin 88-19 about the Toshiba bomb, and the fact that it
would be very difficult to detect by x-ray.

Again, key security personnel in Frankfurt were not told of
the warning, including Alert’s Chief of Training, Oliver Koch,
who was responsible for distributing such warnings to screen-
ers. (JA 2107-08).'* Koch discovered the warning, which had

14

Petitioners ask why the majority opinion does not discuss the
testimony of Wolfgang Schwab, who was one of the few screeners who
had heard of the Helsinki warning. (Pet.23-24). Virtually none of the
Frankfurt or London personnel received either the Helsinki or Toshiba
warning including Maier, the x-ray operator, Fuchs and the other screen-
ers at the main counter in Frankfurt, the x-ray screeners in London, and
all other Alert screeners in London. (JA 2106-08, 2134, 2150-51, 2177,

12

not been date-stamped on receipt, as required, on the bottom
of a pile of papers on the desk of his boss, Weber, early in the
morning following the disaster. (JA 2107-09).

VI. FLIGHT 103 REFLECTED THE GENERALIZED
INADEQUATE SECURITY CREATED BY MAN-
AGEMENT.

Defendants’ security for Flight 103 reflected Pan Am’s gen-
eral security conditions and was riddled with ACSSP violations.

Monica Diegmueller, the GSC for Flight 103 in Frankfurt,
was an “alternate” who had only two to three hours of train-
ing and did not know what the ACSSP required. (JA 1979-
86). She incorrectly believed that another GSC was on the
ramp monitoring the aircraft and its baggage, when in fact no
one was performing those required functions. (JA 2015-16).

There was no guard for Flight 103 at the Frankfurt ramp as
required by the ACSSP. (JA 2156-59, 2164-65). The Alert
screener assigned to do so had became ill and left his post.
(Tr. 1485-86).

Screener Sabina Fuchs admitted that she had no training
and had no idea what a “selectee” was, despite the fact that
her principal job was to identify selectees for additional
scrutiny. (JA 2351-53).

No passenger/bag match for interline bags was in place.

Pan Am’s only defense against a bomb in an unaccompa-
nied interline bag was the Alert x-ray operator Kurt Maier,
who worked alone in a trailer parked on the Frankfurt ramp.
(JA 3306; Tr.5684). On December 21, 1988 Maier had been
employed by Alert for only seven weeks, and had been an x-
ray operator for only one month. (JA 3375-79). He had no

2286, 2347-48). Indeed, Maier, the x-ray screener at Frankfurt testified
that he would have acted differently if he knew about the warning. (SA 9)
The only screeners who were told anything were a few on duty at the
main counter in Frankfurt on December 9 when Schwab heard about a
warning regarding female Finnish passengers.

13

formal training, had never been shown standard training
videos and had not been tested on the use of x-ray. (JA 3376-
79, 3397, 3399). Alert Training Supervisor Anthony Cooke
admitted that allowing a person with Maier’s limited back-
ground to work alone was an unreasonable risk. (JA 3162-63).

The Toshiba warning was never given to Maier, nor was he
ever given instructions to stop bags which contained a radio
or radio cassette player. (JA 3405-08; Tr 6110, 6118-20).'°

Instead, he was only told to look for “suspicious” electronic
devices. (JA 3394-96; SA 10-11).'® Defendants’ x-ray expert,
Dr. Grodzins, admitted, however, that x-ray could not possi-
bly indicate if an electronic device contained a bomb.
(JA 3335-36, 4576; SA 237-239, 242-245). Contrary to defen-
dants’ assertion that there were no radios in the bags he
inspected (Pet.4. Fn 6), Maier admitted that he did not remem-
ber whether any of the bags he x-rayed for Flight 103A con-
tained a radio cassette player.’’

Maier x-rayed thirteen bags for Flight 103 (JA 3392). One
of those bags was the interline Air Malta Flight 180 bag trans-
ferred to Flight 103 through the Frankfurt Airport comput-
erized baggage system. This bag was unaccompanied, as no
passenger from Air Malta Flight 180 was aboard Flight 103.

IS Numerous other Alert screeners testified that no instructions

were ever given to remove all electronic devices. (JA 2134, 2150, 2170-
71, 2177, 2286; SA 8B, 8C).

- Petitioners’ statement that Pan Am “required that every radio

revealed by x-ray inspection. . .be removed and operated” (Pet. 24)
is thus false and was rebutted by Maier himself, who was doing the
x-raying.

17

Petitioner's statement (Pet.4, Fn6 and Pet. 24)) that Maier “tes-
tified that there was no radio in the bags that he inspected” is based on
testimony that Maier recanted! (JA 3413-21, SA 12-20). Furthermore,
plaintiffs never contended that Maier, with or without eyeglasses,
couldn’t recognize a radio cassette player on his x-ray screen. What
plaintiffs did claim is that no one, including Maier, could detect the wires
and explosive material that would indicate it was a bomb.

14

Diegmuller, the GSC, told Captain Michael Anthony, the
pilot of Flight 103 from Frankfurt to London, that there were
no security problems for the flight. (JA 1987-88, 2020-21).

In London, the bags from Flight 103A were loaded into an
aluminum container, AVE 4041, and placed aboard the 747
aircraft. (JA 2510-11, 2521-22, 2525-26; Tr. 2485-91). The
GSC in London was absent, so Passenger Service Agent Price
“acted” as GSC. He was not a qualified GSC, had no security
training and was completely unaware of the ACSSP require-
ments. (JA 2535-37, 2540, 2545).

As the plane was ready to leave the gate, Price learned that
passenger Basuta had checked two bags but had not boarded.
(JA 2545-46). Price was required under ACSSP XIII E to
inform the pilot-in-command, Captain MacQuarrie, of the
unaccompanied bags, but did not do so. (JA 2546-48). Mac-
Quarrie departed unaware that unaccompanied bags, includ-
ing the Basuta bags and the Air Malta bag, had been
loaded on his aircraft.

VII. THE LOCKERBIE BOMB WAS IN AN UNACCOM-
PANIED INTERLINE BAG LOADED ON FLIGHT
103 IN FRANKFURT BECAUSE OF PAN AM’S
FAILURE TO PERFORM A POSITIVE MATCH.

The Scottish-American criminal investigation commenced
immediately. (JA 1517, 1532). Wreckage was meticulously
recovered, catalogued and stored. (JA 1522-27). Large por-
tions of the plane were reconstructed. (JA 617-19, 639). Hun-
dreds of police officers participated in the effort and about
twenty officers with experience in property identification
undertook the process of tracing the recovered baggage to
Flight 103’s passengers. (JA 1524-25).

The forensic investigators determined that the explosion
was caused by a bomb in a Toshiba radio cassette player
packed in a Samsonite suitcase on the second layer of suit-
cases in container AVE 4041, in position 14L of the 747s’

15

cargo hold. (JA 629, 682, 2405-06). The location of the blast
itself indicated the suitcase was a Frankfurt interline bag.'®

The police identified thirteen different items inside the suit-
case when the bomb exploded, including baby clothing, a
women’s blouse and men’s trousers and an umbrella.
(JA 2438-39, 2461-62). They were traced to Malta by Detec-
tive Chief Inspector Harry Bell who identified their places of
manufacture and then, through job lots, the retail shop in
Malta named “Mary’s House” where they had been sold.
(JA 2444, 2448, 2452-55).

Plaintiffs corroborated the Air Malta connection established
by the criminal investigation with the Frankfurt Airport com-
puter printout, which showed the movement of all suitcases to
Pan Am Flight 103, the time each was “coded in” and the
“station” where it was coded in. (JA 2376-78). The printout
showed that at 1:07 p.m., a bag for Pan Am 103 was coded in
at Station 206 and delivered to Pan Am at Gate B44 at 3:23
p-m. (JA 581, 2383-84).

The printout’s accuracy was confirmed by the computer
control room supervisor (JA 2357-60, 2365-70), and by the
baggage traffic controller. (JA 2354-56, 2376). The Station
206 worksheet showed that at 1:07 p.m., only bags from Air

as Petitioners, as well as the dissenting judge below say that no one

except the terrorists knows how the bomb got on the flight.(Pet. 3) That
is wrong. Plaintiffs traced the course of the bag from the Air Malta air-
piane on the tarmac at Frankfurt airport, to FAG baggage conveyance
system coding station 206, through the conveyance system to holding sta-
tion HS33, to Gate B 44 where Pan Am flight 103 A, the 727 which
would fly to London, was loading, onto a small wagon which Tuczu took
to Maier’s x-ray machine, through the x-ray machine and back on the
wagon, to the 727 where it was one of the 13 last bags loaded, to London
Heathrow Gate K16, where it was one of the first bags down the rocket,
onto the second level of bags in Container AVE 4041, and to the 747 at
Gate K14 where container AVE 4041 was loaded in the 14L position.
(JA 2513-2522, 2462-65, 2506-07). Plaintiffs proved the center of the
explosion was on the second level of bags in that container in a brown
Samsonite suitcase with clothing and other materials around it that had
been manufactured and bought in Malta at a retail store by someone who
didn’t care what size clothing he was buying. (JA 2444-55).

16

Malta Flight 180 were coded in. (JA 744, 2388-89; Tr. 1970-
71). There was no passenger for Flight 103 from Air Malta
Flight 180. (JA 716-17).'°

All U.S. and U.K. police and investigating agencies after
meticulous investigation and analysis concluded that the
bomb bag was unaccompanied. (JA 2396, 2400, 2405-06;
Tr. 2897, 2905-06; JA 2579, 2581, 2584; 176-77; JA 2582-83;
SA 172-74; JA 2632; SA 175; JA 2588, 2573).

VIII. DEFENDANTS’ CASE

A. Defendants were given broad freedom to prove a
case

Defendants raised a panoply of defenses in the six weeks
afforded them to put in their case. They called Maltese wit-
nesses to show that security procedures were so tight that the
bomb could not have originated there. They put FAA “test
objects” into evidence (JA 4388-90); discussed the technol-
ogy of color x-rays, thermal neutron analysis machines and
backscatter bomb detection machines (Tr. 5493-5500;
JA 1126-28); played a lengthy training video to the jury
(Tr. 4235-40); and presented evidence of “bomb” cookies.
(Tr. 4885-90). They introduced FAA inspection reports,
(JA 4076-4086), explored minor FAG record keeping anoma-
lies (Tr. 4164, 4439-56, 4602-09, 4610-25, 4686-702);
explored the possibility that the time registered on the FAG
computers could vary by several milliseconds (Tr. 5310-13,
5321-38); suggested that time entries recorded on the work-
sheets might not be synchronized with the time on the FAG
computers (Tr. 4449), showed the vast number of access
points and gates at both the London and Frankfurt airports.
(JA 1168, 3659; Tr. 3799, 4844-57, 6504),”° and raised their

19

Defendants’ own Maltese witnesses helped establish the Maltese
origin of the bomb suitcase. (Tr. 5882, 5889-90, 5923). Air Malta’s own
records showed a discrepancy in the number of bags loaded aboard KM
180. (Tr. 5894-97, 6013-15, 6028-35).

* In another misstatement petitioners say “Pan Am was prepared

to show - but not allowed to show - that. . . there were almost 40,000

17

Hubbard bag a/k/a “13th bag” defense, i.e. that of the 13
checked bags x-rayed by Kurt Maier, one belonged to a Pan
Am pilot and that it, rather than the Air Malta bomb bag, was
the thirteenth bag x-rayed. (Pet. 4-5, Fn6) (Tr. 4741-4808,
5420-56; JA 1130, 1132-33).

B. Defendants’ experts

Defendants did not call any aviation security experts. The
reports and depositions of the experts they produced showed
that they would not offer opinions regarding defendants’ con-
duct or how the bomb got on the flight. (JA 320, 329-32,
447).?!

Instead, defendants sought to introduce what they called
“background” on terrorist groups and testimony on how ter-
rorists are “formidable”, how terrorism is like “other forms of
warfare”, how it is “virtually unstoppable”, and how gov-
ernments did not aid and protect airlines sufficiently and they
offered Scotland Yard bomb squad members to provide anec-
dotal histories of various unrelated bombings. (JA 433, 447,
4416-4434).

C. Sonesen’s “oral waiver”

The record below contradicts defendants’ unsubstantiated
claims that the FAA authorized the use of x-ray as a substitute
for the Section XV match procedure.

airport workers at Frankfurt with access to restricted areas, and they
could come and go without having their bags searched (JA 4448-62).”
(Pet. 20, Fn 29). But this was introduced into evidence by defendants and
discussed specifically in their closing argument to the jury. (Tr 6501-
6502).

at Petitioners’ effort to compare the exclusion of some of their

expert testimony with the admission of evidence of diverse misconduct
in defendants’ security operation (Pet. 19-20, Fn 29) is entirely mis-
placed. Plaintiffs proved gross failures to show these were not isolated
instances of neglect, but, rather, a pattern resulting from central man-
agement contempt for security, and cost cutting. Defendants’ purported
expert testimony, on the other hand, was not based on any evidence in the
case, and it was from experts who had not examined the record and who
professed not to have any opinion on how the bomb got on the airplane.

18

The district court found that no proof of FAA verbal autho-
rization was presented. (JA 3075, 3288). Moreover, the court
held that such proof, even if it existed, was inadmissible
because Pan Am was charged with knowledge of the
ACSSP”, knew that any amendment or exemption could only
be made in writing, and also knew that FAA personnel had no
authority to make verbal changes. (JA 3046). The court of
appeals affirmed the district court’s ruling.

Defendants had offered, or suggested, three witnesses on
the point: Sonesen, Cozzi and Plaskett. As to the testimony of
Cozzi, the court of appeals, as well as the district court, held
it was inadmissible hearsay. (Pet. App. 14a; JA 3265, 3267).
Plaskett, the Chairman and CEO of the company, admitted he
did not remember any conversations concerning FAA autho-
rization. (Pet. App. 15a).

Sonesen, Pan Am’s critical witness on the point, was not
called to testify at trial, nor did defendants offer portions of
his four day deposition testimony. In their sworn interrogatory
answers, defendants claimed that FAA authorization occurred
at an October 1987 meeting of the Air Transport Association
(ATA) Security Committee in Miami Beach, Florida attended
by FAA Security Director Salazar who “approved x-ray as an
alternative for the physical search of unaccompanied bag-
gage.” (JA 833). Sonesen testified on at least three separate
occasions under oath in 1990 and 1991 that his “understand-
ing” of FAA “dispensation. . . from the provisions of Sec-
tion 15. . . dates from that ATA meeting in October of 1987
in Miami.” (JA 868-69, 1025-26, 1028, 1043-44, 1046,
1093).??

22

Several times petitioners attempt to equate and confuse the state
of mind of the defendant air carrier, Pan Am with the alleged state of
mind of Mr. Sonesen. See Pet. 14, 15, and 19.

— Pan Am also withdrew its Security Director, Cunningham as a

trial witness. Cunningham had previously claimed it was his “under-
standing” that Salazar discussed use of x-ray in lieu of the match at a
March 1988 meeting of the ATA security group in Arizona. (JA 975, 977,
994). After learning that Salazar did not attend the March meeting, Cun-
ningham claimed that FAA Security Officer Blazer, who did attend, was
the source of his information. (JA 990). Lally, who chaired that meeting,

19

This testimony was undermined when document discovery
revealed that the Pan Am had acted by December 1986—nine
months before the Miami meeting—to use x-ray and abandon
the match at extraordinary security airports. (JA 1101-02,
3302).

Moreover, Pan Am’s defense was at odds with the fact,
eventually admitted by Sonesen himself, that the 1987 Miami
meeting dealt only with procedures for lower security air-
ports, mainly located inside the U.S., and that the Section XV
C.1.(a) standards for “extraordinary security” airports were
never discussed. (JA 1026-28).?5

The ATA Security Chief who chaired the Miami meeting,
acknowledged that Salazar did not discuss extraordinary secu-
rity procedures. This was further confirmed by the minutes of
the meeting and other airline representatives in attendance.
None of the participants could recall any discussions regard-
ing the Section XV C.1.(a) passenger/bag match or the use of
X-ray at extraordinary security airports. (JA 836-39, 852, 899-
900, 904-05, 917, 922).

In 1991, Sonesen contradicted his prior testimony, and for
the first time alluded to the possibility of FAA authorization
dating back to 1986. (JA 1018, 1035). On July 6, 1992, one
half hour before plaintiffs’ closing argument at the trial,
defendants served a supplemental interrogatory response stat-
ing that Sonesen initially received oral approval for Pan Am

testified that there were no discussions regarding extraordinary security
airports. (JA 898-901, 904-06, 917). This was confirmed by the minutes
and others present, including other airline representatives and Blazer
himself. (JA 841-48, 852, 930-32, 936-39).

3s Sonensen said that at the meeting “we were discussing [ICAO]

514. . . not 15”, and that Salazar “gave me the impression” that he was
granting “relief”, “waiver”, “dispensation”, an “exemption”, from ICAO

Standard 5.1.4. (JA 870, 876-79, 1014-17, 1025-30, 1043-46, 1095). The |
ICAO Standard 5.1.4 requirements are set forth in ACSSP Section VIII |
and establish the procedures for lower security airports which, as Sone-
sen acknowledged, were supplanted by Section XV C. 1.(a) for extraor-
dinary security airports. (JA 1017, 1031). Salazar testified that only
ICAO 5.1.4. was discussed at the meeting. (JA 2081-82).

20

from FAA personnel in 1986, rather than at the 1987 Miami
meeting.** (SA 98-101).

This second version of Pan Am’s defense, however, was
fatally flawed: Sonesen was unable to give the content of the
alleged hearsay conversation(s) and could not provide the
name(s) of the FAA personnel involved, their job title(s) or
authority, their responsibilities regarding the ACSSP, or the
date(s) (except for the year 1986) or the venue(s) of the dis-
cussion(s).?’ (JA 1018, 1035).

With respect to Sonesen the court of appeals found, first,
that defendants’ argument that the alleged waiver was an
“interpretation”, rather than an amendment, exemption, or
waiver, was untenable, since XV.C.1(a) was unambiguous.
(Pet. App. 8a-10a).7* Next it found that the record did not
reveal any express offer of proof by defendants of what Sone-
sen’s testimony would have been, and its “faith in the defen-

” During the discussions before the district court, defendants

relied on the 1987 Miami meeting as the basis for their defense and did
not mention any 1986 conversations. Counsel never articulated the sub-
stance of Sonesen’s proffered trial testimony or provided a cohesive nar-
rative of the alleged FAA authorization. (JA 1956-57, 2855-58, 2940-41,
2953-58, 3004-09, 3041-49, 3073-75, 3627; SA 192-96, 203, 216-21,
224-27).

27 When Sonesen stated that he could recall no conversation with

Salazar prior to the Miami meeting, he was asked “Can you recall any
conversation you had with anyone else from the FAA, prior to October
of 1987, regarding the passenger/baggage match requirement of Section
15?” He answered: “Specifically, no.” (JA 1018).

While defendants rely on the testimony of Pan Am Task Force Co-
Chairman Cozzi in addition to Sonesen, Cozzi conceded that he was
“relying completely on Mr. Sonesen” for his claim that oral approval was
obtained from the FAA. (JA 3275).

28

Pan Am’s own management and security officers conceded that
XV.C.1(a) was unambiguous and required a match and noncarriage or
physical inspection (by “open[ing] up the suitcase”) of unaccompanied
bags. (JA 1029-30, 3289-90, SA 1-2, 209-10, 212-13). Likewise, Pan Am
alleged, in their answers to interrogatories and elsewhere, that the FAA
“approved” x-ray as an “alternative” to Section XV’s requirements, an
acknowledgment that the provision itself did not permit x-ray.

21

dants’ versions of Sonesen’s testimony is not enhanced by the
fact that Sonesen’s 1990 deposition testimony is substantially
inconsistent with the representations made by the defendants
before us.” (Pet. App. 13a).

The court said the failure to properly offer the proof would,
itself, waive the potential error, but even “assuming without
deciding that defendants sufficiently preserved their objec-
tion” does not change the result (Pet.App. 16a-17a).

First, the court of appeals said viewing the exclusion as
being based on the “government authorization” theory, that
required the existence of a government official who had
authority to grant the waiver, and “the FAA officials allegedly
contacted simply did not have the actual authority to grant
any verbal authorization for Pan Am’s x-ray only inspection
of interline bags. (Pet.App. 17a).

Second, viewed as “mistake of law”, that defense was not
allowed, except in limited tax cases, and a heavily regulated
air Carrier may not claim ignorance of the law as an excuse.
(Pet.App. 18a-20a).

Third, viewed as evidence of state of mind of the carrier,
the court of appeals, citing Vinieris v. Byzantine Maritime
Corp.,731 F.2d 1061 and Fed.R. Evid.403 held that “because
the oral waiver evidence was so intertwined with the gov-
ernment authorization and mistake of law defenses... .
admission. . .might well have been unnecessarily confusing
and perhaps prejudicial so as to justify the trial court’s refusal
to allow its admission.” (Pet. App. 20a-21a).

Fourth and finally, the court held that “even if it were an
abuse of discretion to deny admission of the oral waiver evi-
dence on the foregoing grounds, we hold that such an error
was harmless,” ie. “it had no substantial effect on the jury’s
verdict, because the record was replete with overwhelming
evidence that Pan officials ignored repeated warnings and sig-
nals that its security measures were insufficient.” (Pet.
App. 21a).

22

The court cited proof of Pan Am’s knowledge of a fright-
ening Suildup of bombings, receipt by Pan Am of the 1986
KPI Report showing that Pan Am was highly vulnerable to
most forms of terrorist attacks, and receipt in both November
and December, 1988, just before the Lockerbie disaster, of
Security Bulletins 88-19 and 88-22, specifically warning of
the discovery of a Toshiba bomb and warning that the bomb
was difficult to detect by normal x-ray, and the Helsinki
warning that a Pan flight from Frankfurt to the United States
would be bombed within two weeks. (Pet. App 21a-23a).

Defendants also made the argument that the Sonesen pur-
ported testimony of oral waiver was admissible to rebut the
testimony of Raymond Salazar, the FAA Director of Security,
that Sonesen’s statement in a Pan Am E-mail message that
Salazar had granted x-ray as an alternative, was false. The
court of appeals found that whether to allow otherwise inad-
missible evidence in to rebut a false impression left by other
inadmissible evidence introduced by the opposing party is left
squarely to the trial court’s discretion, and the trial court had
offered the defendants a curative instruction directing the jury
to disregard the Salazar testimony, which offer the defendants
refused.*? (Pet. App. 16a.)

D. The proffer of U. K. regulations.

Defendants attempted to introduce evidence of British “reg-
ulations”, which they claimed did not require positive match.
Some of this evidence was admitted.*°

al Even Sonesen’s E-mail did not say that Salazar granted x-ray as

an alternative to the threshold positive match. It was said to be an alter-
native to the physical inspection of the unaccompanied bag after the
match was completed.

30 For example, defendants read to the jury the deposition testi-

mony of Norman Shanks that Chris Price’s failure to inform Captain
MacQuarrie of the unaccompanied Basuta bags aboard the aircraft and
his dispatching of the aircraft with those unaccompanied bags on board
did not violate British security practices. (Tr. 3839-43).

23

Documents offered by defendants included a version of the
Toshiba warning first received by Pan Am four weeks after
the disaster and various items concerning aspects of Heathrow
Airport security. Apart from their irrelevance, all but one of
the documents were informational “circulars” which, unlike
“directions”, do not have the force of law. Moreover, many of
the circulars were issued in 1985 before ACSSP XV C.1(a)
came into effect, and had lapsed in 1987. (Tr. 3781, 3784-5,
4978-9).°! The circulars were properly excluded because of
their non-binding nature, vagueness and their being too
remote. (Tr. 4304-4305, 4314),.2

Contrary to Petitioners’ representation the one “direction”
excluded from evidence did not permit X-raying in lieu of
checked baggage/passenger matching. Rather, it required
“reconciliation” of all bags to passengers—the same require-
ment contained in XV C(1)(a).2? What petitioners’ really
sought to offer was one opinion in several pages from the
deposition of James Jack, Principal Aviation Security Adviser
for the British Department of Transport, that British regula-
tions would have permitted Pan Am to X-ray unaccompanied
interline bags that had been identified by the baggage/pas-
senger reconciliation process. The trial court found that, inas-
much as Pan Am was bound to follow the higher standards of

a Only one U.K. regulation or “direction”, Ex. (Iden.) EL, was

excluded from evidence. It was excluded because defendants’ counsel
sought to unfairly manipulate its language. The court offered to admit EL
and plaintiffs consented to its admission provided defendants’ counsel
gave the plain meaning to the word “operator”, which defendants refused
to do. (Tr. 4316-23). In any event it required a passenger baggage “rec-
onciliation” or match. Pan Am violated it, as well as XV.C.(1))(a).

8 The two arguably relevant circulars defendants sought to intro-

duce were excluded for those reasons, Exhibits EJ and EK (Iden.), both
of which required that baggage be checked against passengers and
removed if no passenger unless the aircraft captain was satisfied there
was no danger.

33

The statement at Pet. 24 that the British Government authorized
the use of x-ray to screen unaccompanied baggage is misleading. “Rec-
onciliation,” which means the same as positive match, was required first.
See Jack deposition, designated by defendants, p. 30.

24

the ACSSP, this testimony was irrelevant unless Pan Am
admitted it knew it was violating ACSSP, but was relying on
the British standards on the issue of its state of mind. Since
the defendants refused to admit that, the trial court refused to
admit Jack’s opinion.

The court of appeals found this was error, but harmless
since there was other evidence that Pan Am’s conduct com-
ported with British regulations, that plaintiffs’ case rested
principally on violation of ACSSP regulations, and since Pan
Am and Alert presented a strong defense concerning the
effectiveness of the use of x-ray, anyway. On the entirety of
the 7,000 page record the court did not believe the few pages,
including the one sentence Jack opinion, regarding British
requirements that Pan Am also violated, would have per-
suaded the jury. (Pet. App. 25a).

IX. THE TRIAL COURT’S CHARGE TO THE JURY
ON WILFUL MISCONDUCT AND CAUSATION.

The trial court’s charge to the jury was largely taken from
defendants’ requests to charge, and it followed the traditional
principles advanced in the cases approved by the petitioner
(Pet.11-13).*

First the court identified the two separate issues. (App. la).
Then it explained wilful misconduct. (App. la). Next it made
specific reference to violation of FAA regulations, and
pointed out that it might or might not be wilful misconduct.
(App. la-2a).** Then the trial court charged the jury on the
issue of causation. (App. 2a).

The defendants did not object or except to this charge.

- Relevant excerpts of the trial court’s charge to the jury are set

forth in the appendix. (App. la-2a).

35 Petitioners’ statement (Pet. 13) that the decision below repu-

diates the established standard for wilful misconduct and replaces it with
a new and simple standard: “did the carrier violate a safety rule?” is
belied by the court’s charge.

25

REASONS FOR DENYING THE WRIT

Defendants’ petition lists three questions for review, but
those questions boil down to one issue: did the district court
commit any error in the admission or exclusion of evidence
which so prejudiced the defendants as to require a new trial?

Petitioners misstate the facts and history of the case to
make it appear that there are important legal questions involv-
ing the interpretation of the Warsaw Convention regarding the
definition of wilful misconduct and the requirement that the
wilful misconduct caused the damage.

There are no such issues herein. The courts below applied
the standard definition of wilful misconduct in Warsaw cases.
Petitioners overlook extraordinary evidence of Pan Am’s
actual knowledge of the danger, including the FAA security
bulletins issued in the two months before the disaster, warn-
ing of the specific danger of a Toshiba type bomb and of a
bombing on a Pan Am flight from Frankfurt to the United
States, and highlighting the fundamental requirement of the
passenger/baggage match, a requirement which Pan Am ille-
gally abandoned two years before the disaster and continued
to ignore in the face of a dire threat.

In addition, the courts below required plaintiffs to prove
that the airline’s wilful misconduct was a substantial factor in
causing the disaster. Petitioners overlook the detailed proof
which showed that the bomb was contained in a Toshiba radio
cassette player packed in an unaccompanied interline bag
transferred from an Air Malta flight and accepted and loaded
by Pan Am on flight 103, as well as the overwhelming evi-
dence, cited by the court of appeals below, of knowledge of
the danger and knowledge of the probable consequences, by
petitioners, and the abysmal failures in every aspect of peti-
tioners’ security.

Finally, there was no “resolution of disputed facts” by the
court of appeals, below.

26

I. THERE IS NO CONFLICT BETWEEN CIRCUITS
AND THE TRIAL COURT’S DISCRETIONARY
RULINGS ON EVIDENCE WERE CORRECT.

A. There is no conflict between the court below and
any other circuit regarding the definition of wil-
ful misconduct and causation under the Warsaw
treaty.

Wilful misconduct. The district court’s jury charge con-
tained the uniform definition of wilful misconduct which has
been routinely applied by courts for over forty years.
(App. la-2a). Pan Am did not object to the charge. In affirm-
ing the judgment, the Second Circuit again defined wilful
misconduct in accordance with that uniform rule. The stan-
dard cited by Pan Am in its petition, based on cases from four
Circuits and four state courts (Pet. 11) is identical to the test
applied by both courts below.

The jury was expressly charged that a regulatory violation
was not in itself tantamount to wilful misconduct. (App. 1la-
2a). The court of appeals below held that “A carrier might not
have acted with wilful misconduct, even were it to have failed
to comply with an FAA regulation.” (Pet. App. 13a). Pan
Am’s claim that the courts below held that wilful misconduct
could be shown simply by the violation of a safety rule is
groundless.

Causation. Pan Am also did not object to the district court’s
charge on causation, which was proper and in accord with the
treaty. (App. 2a). The jury made a separate special verdict
finding that Pan Am’s wilful misconduct “was a substantial
factor in causing the disaster”. As the court of appeals below
held, “the district court carefully and in an extensive and well
balanced charge instructed the jury that it must find not only
wilful misconduct, but also a causal connection between that
misconduct and the passengers’ deaths.” (31a).

The court below’s holding that causation can be established
“by inference based on the totality of the circumstances”
applied a hornbook rule not subject to dispute. The District of

27

Columbia Circuit reached a similar conclusion in In re
Korean Air Lines Disaster, 932 F.2d 1475, 1481 (D.C. Cir.),
cert. denied, 112 S.Ct. 616 (1991), which upheld a wilful mis-
conduct verdict based on circumstantial evidence of “a pattern
of conduct giving rise to liability.”Pan Am’s argument that the
courts below approved a “res ipsa loquitur” standard for cau-
sation is frivolous.

In sum, there is no conflict regarding the treaty’s definition
of wilful misconduct or causation and no basis for the exer-
cise of this Court’s discretionary jurisdiction.

B. The trial court’s discretionary rulings on
evidence were correct.

Defendant Pan Am did not move at trial for judgment as a
matter of law under Fed. R. Civ. P. 50 and defense counsel
conceded that plaintiffs had presented sufficient proof to sup-
port the liability verdicts.

As a result, the only issue raised on appeal before the Sec-
ond Circuit was whether the district court abused its discre-
tion over the admission of evidence. There was no such abuse.

1. The Government authorization defense.

Pan Am failed to make a proper offer of proof. Pan Am’s
so-called government authorization defense relied on fatally
vague statements of counsel that were contrary to the factual
record and unsupported by a proper offer of proof. Pan Am
alleged that its employee Sonesen received oral approval from
the FAA but did not specify the name and office of the FAA
employee involved, or the date (other than late 1986 or early
1987) and place of the conversation. Neither Sonesen, nor his
immediate superior, Security Director Cunningham, was
called to testify and Pan Am’s claims were contradicted by
Sonesen’s prior testimony and the airline’s own answers to
interrogatories.

It is well established that the failure to present the factual
predicate for a defense to permit trial court and appellate

28

review is a proper basis for exclusion. Jones v. Berry, 880
F.2d 670 (2d Cir. 1989)(an offer of proof should have be made
to permit “the reviewing court to make a reasoned evaluation
of the impact of the trial court’s decision.”).

Pan Am’s defense was properly barred as contrary to clear
FAA regulations. The courts below correctly ruled that Pan
Am was charged with knowledge of the subject regulations
mandating a passenger/baggage match and requiring that
any change to that procedure necessitated a written applica-
tion by the airline and written FAA approval. (19a); 14
C.F.R. §§ 11.25(b)(5), 11.27(e); 108.25(b)(c); 49 U.S.C.
§§ 1357(a)(2)(B), 1421(a)(6)(c). Pan Am’s last minute claim
that the regulation was subject to an alternative “interpreta-
tion” was unsupported by any witness or proof, and was con-
tradicted by the clear language of the regulations, the
testimony of Pan Am’s officers and employees and the air-
line’s answers to interrogatories.

To allow Pan Am to challenge the subject FAA requirements
under the circumstances herein would mock the carrier’s reg-
ulatory obligations and improperly present the jury with a
question of law. As the Second Circuit ruled, “[t]here is cause
to be wary because of the ease with which air carriers could
fabricate sham defenses and ignore with impunity safety reg-
ulations.” (20a). Pan Am has failed to cite a single case in con-
flict with the Second Circuit’s holding or which allows an
airline in a Warsaw (or other tort) action to introduce claims
of mistake contrary to clear and binding regulations.

2. Defendants’ pattern of misconduct in failing
to provide mandated security was admissible.

Plaintiffs demonstrated that the entire Pan Am security sys-
tem was corrupted by the corporate management’s contempt
for security, reflected by cost cutting and deception, which
resulted in security failures in every element of the system,
the most important example of which was an abandonment of
the baggage match requirement.

29

Proof of the pervasive misconduct involving Frankfurt and
London security was admissible on the issue of defendants’
wilful misconduct. The prevalence of wrongs permitted the
jury to infer that Pan Am was reckless and knew the probable
consequences.

Fed. R. Evid. 404(b) provides that “[e]vidence of other. . .
wrongs, or acts” is admissible to prove motive, intent, plan or
knowledge.** Wilful misconduct may be based on the totality
of a defendant’s wrongdoing. Complaint of Tug Ocean Prince
v. United States, 584 F.2d 1151, 1164 (2d Cir. 1978), cert.
denied, 440 U.S. 959 (1979). Similarly, “evidence of motive
and of intent may be adduced for the purpose of establishing,
by culmination and by appropriate inferences, the fact of a
defendant’s recklessness or of his knowledge of falsity.”
Goldwater v. Ginzburg, 414 F.2d 324, 342, 336-37 (2d Cir.
1969), cert. denied, 396 U.S. 1049 (1970).

Defendants’ pattern of failures and misconduct in all areas
of their security functions was also probative on causation.
The evidence that the passenger and baggage screeners were
untrained, that the aircraft was left unguarded, that critical
warnings were not distributed and that substantial cost-cutting
had occurred, allowed the jury to infer the causal link
between defendants’ misconduct and the disaster, even if it
rejected the Air Malta proof. As reflected in the trial court’s
charge, accepted by the petitioners, multiple acts of wilful
misconduct-may be proven, and it is for the jury to determine
if they constituted substantial cause of the deaths.

” Courts have repeatedly held that relevant evidence includes the

“overall context”, “pattern”, “state of mind” and “complete story” of a
defendant’s course of conduct. E.g., Ismail v. Cohen, 899 F.2d 183, 188-
89 (2d Cir. 1990); United States v. Diaz, 878 F.2d 608, 613-16 (2d Cir.),
cert. denied, 493 U.S. 993 (1989); United States v. Brennan, 798 F.2d
581, 589-90 (2d Cir. 1986); United States v. Smith, 727 F.2d 214, 219-21
(2d Cir. 1984). Courts have also approved the introduction of background
evidence “to show. . .the circumstances surrounding the events or fur-
nish an explanation of the understanding or intent with which certain acts
are performed.” United States v. Daly, 842 F.2d 1380, 1388 (2d Cir.),
cert. denied, 488 U.S. 821 (1988).

30

II. DISCUSSION IN THE MAJORITY OPINION DID
NOT CONSTITUTE THE RESOLUTION OF DIS-
PUTED FACTS IN DEROGATION OF THE RIGHT
OF TRIAL BY JURY.

The claim by the petitioner that the court of appeals
resolved disputed questions of fact in derogation of the right
of trial by jury, is nonsense. In its discussion of the exclusion
of some evidence the court found that there might well have
been no error at all, but even if there was, it was harmless,
citing other admitted evidence that would have overshadowed
it in any event. This was not the resolution of disputed facts.
It was an explanation of why the error, if it existed, was harm-
less.

CONCLUSION

For the reasons heretofore stated the petition for a writ of
certiorari to the United States Court of Appeals for the Sec-
ond Circuit should be denied.

Respectfully submitted,

Lee S. Kreindler *
Steven R. Pounian
James P. Kreindler
KREINDLER & KREINDLER

On the Brief: 100 Park Avenue
tec S Meolatter New York, New York 10017
Steven R. Pounian (212) 687-8181
James P. Kreindler Attorneys for Respondents
Frank H. Granito, Jr. Judith A. Pagnucco, Dona
Michel F. Baumeister Bardelli Bainbridge,
Frank H. Granito, III Molena A. Porter, et al

December 21, 1994 *Counsel of Record

* PUR gee fae ae Osa a os : A . 3 ae ‘ 3 he ff
Sai eA Sell oR AS Mi RO AN 5 Ga NIE SN RDI Bihsscd ss RHI a ba hts eh aS oe ‘ :

APPENDIX

la

APPENDIX

Excerpts from The trial court’s charge to the jury on
wilful misconduct and causation.

First the court identified the two separate issues:

“You will decide two questions. First, whether or not the
defendants engaged in one or more acts of wilful mis-
conduct. Second, whether any wilful misconduct that
you find was a proximate cause of the destruction of
Flight 103 and the deaths of its passengers.

If you find that wilful misconduct on the part of either or
both defendants was a proximate cause of the passen-
ger’s death, each plaintiff will be entitled to recover his
or her actual damages.” (TR 6555)

On the issue of wilful misconduct itself the trial court fur-
ther charged the jury:

“Wilful misconduct is the intentional performance of an
act with knowledge that performance of that act will
probably result in injury or damage, or it may be the
intentional performance of an act in such a manner as to
imply disregard of the probable consequences of the per-
formance of the act.

Likewise, the intentional omission of some act with
knowledge that such omission will probably result in
damages or injury, or the intentional omission of some
act in a manner from which could be implied reckless
disregard of the probable consequences of the omission,
would also be wilful misconduct.” (Tr. 6557)

With specific reference to violation of FAA regulations the
court added:

“I instruct you that the violation of FAA regulations and
safety standards, and/or defendant’s own internal safety

2a

standards and procedures would not necessarily consti-
tute wilful misconduct.

However if you find that any such violation was inten-
tional, with knowledge that the violation would probably
result in damage or injury, then that would be willful
misconduct. Likewise, it would be willful misconduct if
an intentional or knowing violation was done with a
wanton and reckless disregard of the consequences.

Plaintiffs claim multiple violations of said regulations
and standards by the defendants and their employees and
have detailed in their summary arguments the particular
conduct and particular regulations and standards which
they say constituted these violations, or more or all of
which, together with the remainder of their evidence,
according to them, prove both misconduct and willful-
ness which they claim was a proximate cause of the
death of the passengers.” (Tr. 7557-8).

On the issue of causation the trial court charged the jury:

“If you determine that there was no such willful mis-
conduct, then you must stop right there and you must
bring in a verdict for the defendants. If, however, you
find that either or both the defendants or any of their
employees committed one or more acts of willful mis-
conduct, then you must go on to consider whether or not
such willful misconduct as you have found was a prox-
imate or the legal cause of the death of the passengers on
the plane.

Now, to be the legal cause of this result, namely, the
death of the passengers, the willful misconduct must be
a substantial factor in bringing about that result.

Furthermore, there must be an actual and continuous
sequence connecting the act of willful misconduct with
the death of the passengers.

I say willful misconduct must be a substantial factor in
bringing about the deaths.” (Tr. 6558-9).

3a

* * *

“An act or omission by a defendant is not a proximate
cause of an accident if the accident would have occurred
anyway, that is, even absent the defendant’s act or omis-
sion.

The mere fact that this accident happened, standing
alone, does not permit you to draw the inference that this
accident was caused through the fault of either defen-
dant. Thus, the mere fact that there was a bomb placed
on board the aircraft does not prove that the defendants
were guilty of willful misconduct that caused the crash
and, in fact. does not prove any element of the plaintiffs’
case.” (Tr. 6561).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0888%3A3. Public record. Not legal advice.