The opinion of the court was delivered by: OBERDORFER
Plaintiff James Reynolds has moved for a ruling in limine to prevent defendant Lockheed or third-party defendant the United States from relitigating certain issues assertedly decided in plaintiff's favor in the prior cases of Schneider v. Lockheed, No. 76-0544-1, and Marchetti v. Lockheed, No. 76-0544-3. Defendant Lockheed opposes plaintiff's motion; Lockheed maintains that the circumstances of these cases are not appropriate for the application of offensive collateral estoppel. For the reasons set forth herein, plaintiff's motion will be granted. Additionally, the Court has treated this motion, which has been fully briefed by both parties, as a motion for partial summary judgment in the cases of the remaining infant survivors. See FFAC v, Lockheed, No. 76-0544. On the basis of the partial summary judgment, which the Court grants by accompanying Order, a ruling reflecting the substance of plaintiff's motion in limine will be incorporated into the comprehensive pretrial order governing the trial of all the remaining claims against Lockheed by the infant survivors.
Trial of plaintiff Reynolds' claims against Lockheed will involve a consideration only of the amount of damages, if any, to which he is entitled as a result of the crash of a Lockheed-built C5-A near Saigon on April 4, 1975. By stipulation of September 14, 1979, filed December 6, 1979, Lockheed agreed not to contest its liability to plaintiff Reynolds and all other infant survivors for injuries proximately caused or aggravated by the crash. Trial of the initial three cases thus involved determination first of whether the plaintiffs now suffer from any injury, disease, defect or disability; and, if so, whether those injuries were the result of the crash. A substantial proportion of the testimony and argument was devoted to the question of whether the forces and conditions associated with the crash were sufficient to cause injury to an infant passenger in the plane's troop compartment. All this testimony was necessarily general, since the precise location or circumstances of each individual infant in the troop compartment is unknown. A single jury, sitting in all three cases, rendered a verdict of $ 500,000 for plaintiff Schneider and $ 1,000,000 for plaintiff Marchetti. After a partial settlement of $ 30,000 occasioned the withdrawal of one of plaintiff Zimmerly's claims, the jury returned a verdict for defendant Lockheed. By order of July 15, 1980, the verdict in Zimmerly v. Lockheed was set aside and a new trial ordered for reasons fully explained in a memorandum filed July 22, 1980. By Orders of July 8, 1980, the Court denied Lockheed's motions for a new trial or, in the alternative, for judgment n. o. v. in Schneider v. Lockheed and Marchetti v. Lockheed.
Plaintiff's motion seeks to prevent Lockheed from retrying in Reynolds (and subsequent cases) the questions of whether the explosive decompression at 24,000 feet altitude, hypoxia, impact of the C5-A with the ground at 310 miles an hour, and psychological trauma, alone or in combination, were sufficient to (a) proximately cause minimal brain dysfunction (MBD) or (b) proximately aggravate a pre-existing injury, defect, or disease of an infant passenger. In support of this motion, plaintiff relies upon the verdict in Schneider v. Lockheed, in which the jury found that each of these forces aggravated a pre-existing condition, and the verdict in Marchetti v. Lockheed, in which the jury found that these same forces proximately caused injury to plaintiff. In each case, the jury rendered a special verdict (copies of which are attached hereto) in which it expressly found that the enumerated forces, alone and in combination, proximately caused (in Marchetti) and aggravated (in Schneider) injuries to plaintiff.
Granting plaintiff's motion would not prevent Lockheed from attempting to argue that the plaintiff has no medical manifestations of injury or that any such manifestations were caused by events unrelated to the crash. Rather, the motion seeks to preclude Lockheed from asserting-as it has in the first three trials-that the forces associated with the crash were insufficient to cause injury to an infant passenger aboard the C5-A.
These actions are brought in diversity. The Court has determined that the law of the District of Columbia applies to all aspects of these cases. In re Air Crash Disaster Near Saigon, 476 F. Supp. 521, 529 (D.D.C.1979). It is settled in this Circuit that a federal court sitting in diversity must look to the applicable local law to determine whether, and the extent to which principles of collateral estoppel may be employed. Gatewood v. Fiat, 199 U.S. App. D.C. 238, 617 F.2d 820, 826 n. 11 (D.C. Cir. 1980); but see In re Multidistrict Civil Actions, etc., No. 3834ML (S.D. Ohio, Sept. 26, 1972). In making this determination, the Court has the benefit of the very recent opinion of the District of Columbia Court of Appeals in the case of Jackson v. District of Columbia, 412 A.2d 948 (D.C.App.1980).
The D.C. Court of Appeals there abrogated the requirement of mutuality, which formerly prevented a party from using a prior judgment as an estoppel against the other unless both parties were bound by the judgment. Jackson v. District of Columbia, at 953. However, 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 ...