that Court did not reach the question of whether estoppel may be employed offensively, as plaintiffs seek to do here. See Jackson v. District of Columbia, at 953 n. 11.
Although a federal court must defer to a determination of state law by the highest court of a jurisdiction, it need not await a conclusive determination of an unsettled issue of state law. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 1782, 18 L. Ed. 2d 886 (1967). With the demise of "mutuality," it is too ephemeral to suggest that D.C. law would foreclose the use of offensive collateral estoppel in these circumstances. In reaching this conclusion, the Court notes first that in abrogating the requirement of mutuality, the D.C. Court of Appeals relied upon the same authority and reasoning employed by the United States Supreme Court in permitting the use of offensive collateral estoppel in Federal courts. Compare Jackson v. District of Columbia, at 952-953, with Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). Specifically, the Jackson court relies upon the Restatement (Second) of Judgments § 88, which makes no distinction between offensive and defensive use of collateral estoppel. See Parklane Hosiery Co. v. Lane, 99 S. Ct. at 651 n. 16. Second, the D.C. Court of Appeals has already sanctioned the use of offensive collateral estoppel where a plaintiff in a civil action has attempted to assert judgment in a preceding criminal action against a party who is a defendant in both cases. Ross v. Lawson, 395 A.2d 54 (D.C.App.1978). Finally, the "considerations of fairness or correct resolution of the dispute," which the Jackson court implied might effect the use of offensive estoppel generally, do not preclude its use in the circumstances here. See Jackson v. District of Columbia, at 953. As is discussed more fully below, there are no differences in forum or procedures between the cases already tried by this Court and those that remain to be tried that would render it unfair for Lockheed to be bound by a prior judgment in this Court. Accordingly, the Court finds that under these circumstances, including the tangential federal interest previously considered (see In re Air Crash Near Saigon, supra), the law of the District of Columbia permits the use of offensive collateral estoppel.
Assuming that offensive collateral estoppel is available as a matter of law, its application to particular cases is a matter within the discretion of the trial court. See Parklane Hosiery Co. v. Shore, 99 S. Ct. at 651. None of the circumstances that might militate against the use of offensive collateral estoppel are present here.
First, plaintiff Reynolds (and all other surviving infant plaintiffs) could not have joined the prior actions, the results of which they now seek to employ. Suffice it to say that defendant Lockheed has consistently opposed any consolidation of the damage claims of the infant survivors, and cannot be heard to complain because plaintiff failed to join the earlier actions. Accordingly, the use of collateral estoppel in these actions will not undermine judicial efficiency by encouraging plaintiffs not to join similar claims against a common defendant.
Second, there is no unfairness in employing collateral estoppel against Lockheed. All the claims of the infant survivors were filed simultaneously and have proceeded through the pretrial stages in concert. All plaintiffs (as well as defendant Lockheed) have retained the same counsel throughout, and the Court has appointed a single guardian ad litem for all. Plaintiffs shared the identical physical experiences; each is alleged to be the victim of the identical forces and conditions. In the two jury trials relied upon to effect the estoppel, the circumstances of the flight were thoroughly developed. The key witnesses, including the flight crew, nurses, and adult passengers have testified at length. Medical testimony was elicited from articulate experts who had examined a number of the infant passengers, made written reports, been heavily deposed, and testified extensively on direct and cross examination. There can, accordingly, be no suggestion that Lockheed did not contest the Marchetti and Schneider cases vigorously because it was unaware of the possibility of further damage claims by other plaintiffs. Indeed, the Schneider and Marchetti cases were early identified as "bellwether" cases, and the possibility of giving the verdicts in these cases collateral effect has been discussed for many months. Lockheed has had a full, fair, and complete opportunity to present its proof on the issues on which plaintiff now seeks to foreclose and narrow further litigation.
Third, the decisions upon which the plaintiffs rely are not inconsistent with any other decisions. Although the jury found for the defendant in Zimmerly v. Lockheed, No. 76-0544-2, that verdict was the product of confusion and error. It has been set aside. See Order of July 15, 1980; Memorandum of July 22, 1980. Moreover, a defendant's verdict in Zimmerly, even if it were allowed to stand, would not be inconsistent with the conclusion reached here. The jury in Zimmerly found that the plaintiff did not suffer from any disease, defect, disability or injury that was caused or aggravated by the crash. This conclusion may well reflect a finding by the jury that plaintiff Zimmerly suffers no injury, disease, defect, or disability from any cause, although the crash might well have caused such injuries. In view of the clarity of the jury's findings on the special verdicts in the Schneider and Marchetti cases, and the peculiar circumstances that require a new trial for plaintiff Zimmerly, it is unnecessary to speculate further.
Finally, there are no procedural opportunities available to Lockheed in Reynolds (or subsequent proceedings) that were unavailable to it in the Schneider and Marchetti cases. All the remaining cases will be tried in this District Court, subject not only to identical rules of procedure, but also identical rulings on the admissibility of evidence and instructions to the jury. Lockheed cannot possibly be said to have suffered from the circumstances of the first trials in any way that would make it unfair to give the verdicts in these cases future effect. See Parklane Hosiery Co. v. Shore, 99 S. Ct. at 651-52.
The Court concludes that the circumstances in the present case are precisely those calling for use of estoppel. The use of a special verdict form removes any relevant doubt about the nature or substance of the jury's findings. And the pendency of as many as 147 other damage claims, all arising out of the same occurrence and all sharing claims that common forces caused common or similar injuries, calls for the use of principles that would limit costly and repetitive litigation. Parklane Hosiery Co. v. Shore, 99 S. Ct. at 649; Blonder-Tongue Labs v. University Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971). It is possible, of course, that if the potential effect of the forces were relitigated in each subsequent case, Lockheed might conceivably prevail on one or more occasion. But this prospect does not justify expenditure of judicial time and effort that the use of collateral estoppel would avoid. As the Supreme Court stated in Blonder-Tongue Labs :
Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or "a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.'
402 U.S. at 329, 91 S. Ct. at 1443. The defendant is entitled only to a full and fair opportunity to litigate its claim, Blonder-Tongue Labs v. University Foundation, 402 U.S. at 329, 91 S. Ct. at 1443; Lockheed has plainly had that chance. Nor is this a case where a court decision precludes a jury trial. Here jury verdicts created the estoppel against reiterated jury trials of issues already resolved by juries.
The arguments relied upon by Lockheed to oppose the use of estoppel are not persuasive. Defendant cites McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), for the proposition that tort claims of this type are inappropriate for "class action" treatment. McDonnell Douglas, however, does not purport to address the question of collateral estoppel. The holding relied upon the defendants relates only to the construction of Rule 23, Fed.R.Civ.P., and is inapposite the issues presented here. Nor is Lockheed correct that collateral estoppel may not be used for issues relating to "damages" in tort. Throughout the first three trials, Lockheed has asserted the general principle that the forces associated with the crash were insufficient to cause injury to an infant. Although each individual plaintiff is clearly unique, and may suffer or claim different injuries from the crash, the question of whether the crash could cause MBD or similar injuries is plainly common to all the cases. The proof of causation introduced by both parties was directed not toward plaintiffs Marchetti and Schneider individually, but rather towards the susceptibility of infants sharing their basic characteristics to the conditions of the crash. The principle of collateral estoppel applies to "issues," not "causes of action," and its applicability is determined by examining the "single, certain and material point(s) arising out of the allegations and contentions of the parties." Jackson v. District of Columbia, at 953-954, quoting, Paine & Williams Co. v. Baldwin Rubber Co., 113 F.2d 840, 843 (6th Cir. 1940). The issues identified by plaintiff meet this test.
Accordingly, for the purpose of the trial of Reynolds v. Lockheed, and in the comprehensive pretrial order governing the trials of all remaining claims of surviving infants, the parties shall adhere to the following principle:
Neither Lockheed nor the Third-Party Defendant shall attempt to re-litigate, re-offer evidence, or re-argue, in the presence of the jury, whether there was insufficient hypoxia, force, psychological trauma, or explosive decompression in the troop compartment of the C5-A as to proximately cause neurological dysfunction (MBD) or proximately aggravate preexisting injury, disease, defect or disability.