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FRIENDS FOR ALL CHILDREN, INC. v. LOCKHEED AIRCRAF

January 27, 1982

FRIENDS FOR ALL CHILDREN, INC., as legal guardian and next friend of the named 150 infant individuals, et al., Plaintiffs,
v.
LOCKHEED AIRCRAFT CORPORATION, Defendant and Third-Party Plaintiff, v. The UNITED STATES of America, Third-Party Defendant



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

 On April 2, 1976, FFAC filed this suit as legal representative of the 150 surviving infants. While pretrial proceedings were in an early stage, the Panel for Multi-District Litigation transferred here several other cases growing out of the crash brought by and on behalf of U.S. citizens who were aboard the C-5A against Lockheed in federal courts around the country.

 Until February 1978, while discovery proceeded concerning liability, the Court and defendant's counsel dealt primarily with the cases involving adult U.S. citizens and gradually settled all except three which were remanded to the Southern District of New York for trial. These infant cases first became active, independent of the U.S. citizen cases, as a result of discovery disputes and defendant's attacks on FFAC's standing and credentials. Although defendant explained the lack of settlement of infant cases, in part at least, as resulting from FFAC's inability to effect settlements binding on the infants it represented, no one suggested the appointment of a guardian ad litem to represent the infant plaintiffs, and the idea did not occur to the Court. There being no guardian ad litem, in February 1978 FFAC's counsel, in order to perfect the claims of the infants asserted protectively for them by FFAC, wrote to each parent of an adoptive child that FFAC had filed the suit on its own for the benefit of the orphans. The letter suggested that the adoptive plaintiffs now substitute themselves for FFAC as legal representatives in the present cases. The letter further suggested that each plaintiff retain FFAC's lawyer, without thoroughly relating the costs and risks involved or suggesting the possibility of alternative counsel. One of the adoptive parents, Yul Brynner (then living in Paris) communicated with the Justice Department and denounced the FFAC lawyers for suggesting that Brynner's adopted child might be ill and for filing a lawsuit for the child's benefit without parental consent. Thereafter, the United States moved to disqualify FFAC's lawyers for improper solicitation and Lockheed moved for summary judgment dismissing the suits because FFAC lacked capacity to represent the infants. Again, there was no suggestion of a guardian ad litem.

 The Brynner letter, the United States' motion to disqualify plaintiffs' counsel, and the motion for summary judgment raised novel and serious questions. The standards governing lawyers' advertising and communicating with clients were in a state of flux. See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978); In re Primus, 436 U.S. 412, 98 S. Ct. 1893, 56 L. Ed. 2d 417 (1978). The District of Columbia Bar was in the process of developing new rules on the subject to reflect recent Supreme Court decisions. Charles R. Work was recently President of the D.C. Bar and closely involved in adopting standards governing lawyer advertising and solicitation. He had a good reputation for ability and was well regarded by other judges of this Court as a result of his services as Assistant United States Attorney *fn1" Accordingly, the Court appointed Mr. Work as amicus curiae to consider the various complications generated by the unusual stance of plaintiffs, their representatives and their counsel, and to advise whether the complexities could and should be resolved by the appointment of a guardian ad litem.

 In due course, Mr. Work advised that in his opinion communication from FFAC counsel to the adoptive parents did not violate any professional standard and was appropriate in these circumstances, but that appointment of a guardian ad litem was indicated and would, in effect, moot the issues raised by Lockheed's summary judgment motion. After receiving briefs from the parties and conducting a hearing on the amicus' recommendations, the Court denied the motion for summary judgment and, over vigorous objections by defendant, appointed Mr. Work and his firm as guardians ad litem.

 The guardian's first task was to design and send to adoptive and de facto parents of infants a thorough notice of their claims, and a full appraisal of the medical and legal circumstances of the infants who had survived the crash. The Brynner letter and changing professional norms sensitized all involved to the delicacy of the communication, and the necessity that it be complete, candid, and, where appropriate, followed up by personal conferences between the guardian ad litem and the adoptive parents, here and abroad. This was no ordinary commission as guardian ad litem. And the subsequent responsibilities for 150 wards, scattered across the United States and Europe, and involved in a bitterly-contested, complex litigation, have also been extraordinary for a guardian ad litem.

 Thereafter, the guardian submitted to the parties and the Court several drafts of a communication. The hearings on those drafts quickly disclosed an underlying concern of the defendant (or at least its insurance carrier). The defendant endeavored to shape the communication to individual parents and the resulting arrangements so that defendant could deal directly with each plaintiff or potential plaintiff. *fn2"

 After defendant had sought unsuccessfully to persuade the Court of Appeals to prohibit or mandamus this Court on these issues, and following lengthy negotiations, the parties agreed upon an interim settlement in which Lockheed agreed not to contest its liability for damages proximately resulting from the crash in exchange for plaintiffs' agreement not to seek punitive damages. Defendant also agreed to pay $ 5,000 for each child who filed an amended complaint, with the fund so created being used for medical examinations and expenses and for litigation expenses. Finally, defendant agreed to pay 30% of any judgment without awaiting appeal. See Stipulation of September 14, 1979.

 The cases of three infants were then selected as "bellweather" cases and were tried in the Spring of 1980. Following a retrial of one of the cases in January 1981, the cases were reviewed in expedited appeals, and sizeable judgments for the three infant plaintiffs were reversed and remanded for new trials, the plaintiffs retaining 30% of each judgment pursuant to the 1979 settlement. Schneider v. Lockheed Aircraft Corp., 212 U.S. App. D.C. 87, 658 F.2d 835 (D.C.Cir.1981). *fn3"

 After the first three trials and before the judgment of the Court of Appeals, this Court conducted hearings on a Motion for a Preliminary Injunction, filed by plaintiffs and their guardian ad litem, to require the defendants to establish a fund to provide for medical needs of the infants while their suits were being litigated. This motion was held under advisement while the parties negotiated and tentatively agreed upon an interim trust to serve this purpose. This agreement was, however, subject to approval by higher level Justice Department officials. The settlement was only recently rejected by these officials.

 This Court's Calendar Committee then established a procedure whereby, following completion of discovery, the remaining cases could be reassigned randomly to other judges of this Court. Such reassignments were completed and several additional cases were tried and three settled in the Winter and Spring of 1981. All of the judgments based on trials had to be vacated, however, after the Court of Appeals' decision in May 1981, so that only the final judgments in the three settled cases remained standing. In view of the number of cases remaining to be tried and the need for coordination between various judges over trial schedules, this Court issued an en banc Order on July 31, 1981, which provided that these cases would be tried one per month as long as necessary, beginning January 1982 with no judge trying more than one case per year. The retrial of one of the three cases reversed by the Court of Appeals was scheduled for the Fall of 1981, but that case was settled, bringing to four the number of cases that were finally resolved as of January 1, 1982, and two in which 30% of a judgment for plaintiff was final.

 Also during the Fall of 1981, there were substantial discussions of a global settlement, also involving a trust, for all cases of infants who were adopted by parents residing in the United States. In addition, the defendant and the third-party defendant moved to dismiss the cases of the infants residing overseas on the basis of forum non conveniens, but this motion was denied by this Court. See Memorandum of October 2, 1981.

 Since his appointment, the guardian ad litem has carried out his duties by, inter alia, (1) contacting parents of individual plaintiffs, both domestic and foreign, about their participation in these cases, both by the carefully designed notice procedure, and in some cases by personal visit or telephone; (2) arranging and supervising medical examinations to determine the severity of injuries for purposes of the pending claims, the need for treatment of individual plaintiffs, and the prospect of diagnosis and treatment for the plaintiffs as a group having similar medical problems and similar medical and educational requirements; (3) administering a Guardian's Fund, originally established by the defendant's payment of $ 5,000 to each individual plaintiff who has filed an amended complaint, pursuant to the stipulation entered into on September 14, 1979, and thereafter supplemented with sums paid out of amounts paid into Court in cases which have settled or in which amounts were paid in partial satisfaction of judgments which were later reversed on appeal. These funds have been used both for the conducting of medical examinations and for the provision of ...


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