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IN RE AIR CRASH DISASTER MEAR SAIGON

April 12, 1979

IN RE AIR CRASH DISASTER MEAR SAIGON, SOUTH VIETNAM ON APRIL 4, 1975


The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

There is before this Court all the litigation which has grown out of the 1975 crash near Saigon of a Lockheed-built United States Air Force C-5A transport plane carrying United States military and civilian personnel and 226 Vietnamese orphans. The orphans were aboard the plane pursuant to arrangements made for them by the United States and Friends for All Children ("FFAC"), a Colorado non-profit corporation. During the United States' involvement in Vietnam, FFAC had provided care and shelter for orphans there and had arranged for the adoption of a number of them by foster parents in the United States and elsewhere.

 Actions against Lockheed on behalf of Vietnamese orphans who survived the crash and on behalf of estates of those who died were filed against Lockheed in the District Court of the District of Columbia by FFAC as original diversity cases. Actions against Lockheed by surviving United States citizens and on behalf of the estates of deceased ones were filed in or removed to various federal courts around the country. Some were originally filed here; others were transferred by the Multi-District Panel.

 The Court assumes, without deciding, that it has diversity jurisdiction of the decedents' and surviving orphans' cases, either pursuant to this Court's alienage jurisdiction, 28 U.S.C. § 1332(a)(2), or the Court's domestic diversity jurisdiction, 28 U.S.C. § 1332(a)(1). A careful determination of the jurisdiction of the Court with respect to each meritorious case must await the outcome of communications by the Guardian ad litem with the legal guardians of the surviving orphans and the heirs or next of kin of the decedents. At that time the Court will be in a position to act on a complete record, Compare Addendum to Exhibit J-1, Exhibits to Lockheed's Motion for Summary Judgment in C.A. No. 76-0544, and with the benefit of full briefing by all parties. *fn1"

 Lockheed has claimed over against the United States, which is now a third party defendant in all the cases.

 The Court and the parties are proceeding with the administration of these cases on two main tracks. The cases brought by and on behalf of United States citizens have been the principal forum for vigorous discovery, and one of them is scheduled for trial in November, 1979, pursuant to pretrial order entered on January 4, 1979. Thomas v. Lockheed, C.A. No. 75-1831. Another case filed on behalf of the estate of Joanna Pray, a deceased Vietnamese, by the same lawyers who represent FFAC, is on the same pretrial schedule as Thomas and will be tried in November if Thomas is not.

 Meanwhile, on the other track, administration of the orphan cases has been impeded by collateral issues relating to the qualification of FFAC as a proper representative of the surviving orphans and the estates of the deceased orphans, and the possible disqualification of the lawyers representing FFAC. *fn2" For example, FFAC may have a conflict of interest because of its possible liability to the orphans and the estates on account of its role in arranging what may prove to be unconventional and unsafe transportation for those killed and injured. In addition, the United States and Lockheed took vigorous exception to efforts by FFAC not only to substitute foster parents for FFAC as next friend of surviving children but also to substitute them as clients of FFAC's lawyers. Finally, the Court and the parties have been unable to design a satisfactory solution to the problem growing out of the practical fact that some of the estates represented by FFAC may have no beneficiaries, so that prosecution of some estates' claims might prove to be useless exercises ending with payments by the United States Government and Lockheed that would escheat to some local jurisdiction, after deduction of attorneys fees. *fn3"

 On February 23, 1979, *fn4" after careful consideration of briefs filed by Charles R. Work, Esq., *fn5" as court-appointed Amicus curiae, responding briefs by the parties and extensive oral argument by Amicus and counsel, the Court appointed Mr. Work and his law firm as Guardian ad litem to represent the interests of the surviving orphans and the infant beneficiaries of the estates, at least until the above-mentioned difficulties could be resolved, and, in the interim, to take initiatives under Court supervision to resolve them. *fn6"

 The effect of the February 23, 1979 appointment was to allow FFAC to continue to maintain the actions on behalf of the estates and surviving infants in collaboration with the Court-appointed Guardian ad litem unless and until FFAC is replaced by the newly-appointed Guardian or by some other legal representative (in the cases of the estates) or next friend or guardian (in the cases of the surviving infants). *fn7"

 The February 23, 1979, Order also denied Lockheed's motion for summary judgment with respect to the survivors and its renewed motion for summary judgment with respect to the decedents. The thrust of both motions was that, under applicable law, FFAC lacked capacity to bring these lawsuits on behalf of either the surviving orphans or the estates of the deceased ones.

 With respect to the surviving orphans, Lockheed maintained in support of its motion that FFAC was neither legal guardian of the infants nor appropriate next friend to bring this lawsuit on their behalf because FFAC was not formally appointed and was not entitled to assume its responsibilities by operation of law. See Lockheed's Memorandum in Support of its Motion for Summary Judgment, C.A. 76-0544, Sept. 29, 1979. The Court concluded that it was unnecessary to unravel the tangled web of foreign and domestic legal problems spun by Lockheed's motion. See Fed.R.Civ.P. 17(c). *fn8" FFAC had the capacity as a legal person "who has an interest in the welfare of an infant who may have a grievance or a cause of action," to initiate these actions on behalf of the surviving orphans as a "next friend." Child v. Beame, 412 F. Supp. 593, 599 (S.D.N.Y.1976); Fed.R.Civ.P. 17(c).

 Subsequent argument by Lockheed raised the possibility that FFAC may have a conflict of interest because of liability to the surviving orphans. See Lockheed's Reply to FFAC's Opposition to Lockheed's Motion for Summary Judgment, Point IV, C.A. 76-0544, November 20, 1978. In light of this potential conflict and pursuant to its duty to ensure proper representation of infant plaintiffs the Court has appointed Mr. Work and his law firm as Guardian ad litem. Fed.R.Civ.Proc. 17(c). Mr. Work will be alert to recognize actual and potential conflicts and will manage the notification procedure set out in the Court's Order of February 23, 1979 without displacing FFAC. See Horacek v. Exon, 357 F. Supp. 71 (D.Neb.1973); Noe v. True, 507 F.2d 9 (6th Cir. 1974); See also United States v. E. I. DuPont de Nemours & Co., 13 F.R.D. 98 (N.D.Ill.1952). The appointment of Mr. Work thus cured for the present any lingering defects in FFAC's capacity to maintain this lawsuit on behalf of surviving orphans alleged in connection with Lockheed's summary judgment motion. Accordingly, Lockheed's motion for summary judgment in the survivors' cases, C.A. 76-0544, was denied in the Order filed February 23, 1979.

 With respect to the estates, Lockheed's motion contended that the District of Columbia law authorizing a "legal representative" to sue on behalf of an estate, D.C.Code § 12-101, is inapplicable to the decedents' cases under choice of law-conflicts of law principles; Lockheed maintained that the capacity of FFAC or any other representative to represent the estates of the deceased orphans is governed by the law of Colorado or Vietnam, neither of which would have permitted FFAC to maintain this action on behalf of the estates. See Lockheed's Motion for Reconsideration of its Motion for Summary Judgment, C.A. 75-0874, May 31, 1978. In denying Lockheed's renewed motion for summary judgment with respect to the claims on behalf of the estates the Court has resolved the choice of law question in favor of the law of the District of Columbia, specifically D.C.Code § 12-101 governing the survival of actions. *fn9"

 In a Memorandum filed on May 1, 1978, the Court held that while FFAC may not be a perfect legal representative for the estates of deceased orphans, it was the best one before the Court at the time and fell within the broad definition of legal representative as used in D.C.Code § 12-101. Any possible defects in the recognition of FFAC as a legal representative put at issue by the Lockheed motion are also cured for the present by the appointment of Mr. Work as Guardian ad litem to represent the interests of infant beneficiaries, I. e., heirs or next of kin, of the estates of the deceased orphans. Mr. Work and his law firm are the Court-appointed guardians of the minor legal representatives of the deceased orphans, See Strother v. District of Columbia, 372 A.2d 1291 (D.C.App.1977), and are entitled to pursue these actions, under the supervision of the Court, pursuant to the authority of Fed.R.Civ.P. 17(c) and ...


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