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IN RE DISASTER AT RIYADH AIRPORT

May 20, 1982

In re DISASTER AT RIYADH AIRPORT, SAUDI ARABIA, ON AUGUST 19, 1980


The opinion of the court was delivered by: FLANNERY

This matter comes before the court on defendants' joint motion to dismiss the cases before this court on grounds of forum non conveniens. For the reasons articulated below, defendants' motion to dismiss is conditionally granted. *fn1"

 FACTS

 On August 19, 1980, plaintiffs' decedents were passengers on Saudi Arabian Airlines Flight 163, a regularly-scheduled flight between Riyadh, Saudi Arabia and Jeddah, Saudi Arabia. As the aircraft took off from Riyadh airport, a fire broke out on board the plane. Although the pilot was able to maneuver the plane back to the airport and to land it without incident, by the time the plane was opened all of its occupants were dead. According to the plaintiffs, the deaths were caused by inhalation of smoke and poisonous gases and by failure of the doors and emergency exits to open or to be opened. Plaintiffs have sued Saudi Arabian Airlines *fn2" ("SAA"), the operator of the plane, Trans World Airlines, Inc. ("TWA"), the company which trained SAA personnel in the operation of the plane, and Lockheed Corporation ("Lockheed"), the manufacturer of the plane. *fn3"

  The instant cases were originally filed in various jurisdictions throughout the country, *fn4" but in the interest of the efficient use of judicial resources, the Judicial Panel on Multi-district Litigation determined that all these actions should be consolidated for pretrial proceedings. Because this court had received the first federal case filed after the accident in question, this court received the assignment of handling the consolidated proceedings and, as a result, all other federal cases arising out of this disaster were transferred to this court. Of the consolidated cases before this court, eight had been brought on behalf of resident real parties in interest (i.e. United States relatives of United States decedents) and the remainder had been brought on behalf of foreign real parties in interest (i.e. foreign relatives or representatives of foreign decedents). At oral argument on this forum non conveniens motion, counsel for the parties informed the court that all the resident (i.e. United States) cases had been settled; thus, at present, all the cases pending before this court have been brought on behalf of foreign real parties in interest. *fn5"

 DISCUSSION

 In considering a forum non conveniens motion, the trial court's basic function is to "weigh (the) relative advantages and obstacles to fair trial." *fn6" Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1974) ("Gilbert"). Such a determination represents the "exercise( ) of structured discretion by (a) trial judge( ) appraising the practical inconveniences posed to the litigants and to the court should a particular action be litigated in one forum rather than another." Pain v. United Technologies Corp., 205 U.S. App. D.C. 229, 637 F.2d 775, 781 (D.C.Cir.1980), cert. denied, 454 U.S. 1128, 102 S. Ct. 980, 71 L. Ed. 2d 116 (1981). Although the plaintiff's initial forum choice is normally to be given "considerable, but not conclusive, weight" in the exercise of this discretion, id. at 783, this presumption in favor of the initial forum choice applies with less than maximum force when the real parties in interest are foreign. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, -- - -- , 102 S. Ct. 252, 265-66, 70 L. Ed. 2d 419 (1981); cf. Pain, 637 F.2d at 786 (plaintiffs' initial forum choice entitled to less deference when connection between plaintiffs, controversy and forum is tenuous).

 Although, over time, a substantial body of forum non conveniens caselaw has been developed, the instant motion is largely controlled by the principles of two recent decisions: 1) the seminal forum non conveniens decision in this circuit- Pain v. United Technologies Corp., 205 U.S. App. D.C. 229, 637 F.2d 775 (D.C.Cir.1980), and 2) the Supreme Court's most recent forum non conveniens decision- Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981). *fn7" In Pain, the Court of Appeals established a four-step test for a trial judge to follow in considering a forum non conveniens motion.

 
As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice n( *fn8" ). If the trial judge finds this balance of private interests to be in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of trial in a foreign forum. If he decides that the balance favors such a foreign forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

 Pain, 637 F.2d at 784-85. This four-step process clearly attempts to balance three distinct sets of interests: those of the plaintiffs, the defendants and the forums involved.

 I. Alternative Forums

 Defendants have attempted to remove all contention over this threshold issue by agreeing to submit themselves to the jurisdiction of the national courts in either Saudi Arabia, the scene of the accident, or each plaintiff's domicile or in any other country having jurisdiction of a plaintiff's cause of action pursuant to Article 28 of the Warsaw Convention. *fn9" Although plaintiffs argue that alternative forums cannot be created by the defendants' consent, this does not appear to be a correct statement of the law. See Defendants' Reply to Plaintiffs' Opposition at 6. Further, in Pain the court specifically approved of Judge Hart's ordering a forum non conveniens dismissal "only on the condition that (the defendants) agree to submit to the jurisdiction of the various foreign courts of (plaintiffs') choice." Pain, 637 F.2d at 785; accord, Piper, 102 S. Ct. at 258 (by implication).

 Although defendants' willingness to consent to jurisdiction readily creates a number of alternative forums for these cases, it does not dispose of this threshold issue because satisfaction of this issue requires the existence of adequate alternative forums, not just alternative forums. See text supra at 1144-1145. (block quote from Pain). The inclusion of this adequacy qualification allows the court some room to make discretionary judgments as to the viability of the particular alternative forums existing in any given case (i.e. certain forums even though available might not yield just results in a given case); however, although this discretion exists, the Piper Court recently indicated that the range of this discretion is somewhat limited and that it is only in "rare circumstances ... where the remedy offered by the alternative forum is clearly unsatisfactory" that such a discretionary finding of inadequate should be made. Piper, 102 S. Ct. at 265 n.22 (emphasis supplied). In explicating the degree of "inadequacy" required in this area, the Court noted that sufficient "inadequacy" to justify considering a proposed alternative forum inadequate for forum non conveniens purposes would exist when "there is ... danger that (the plaintiffs) will be deprived of any remedy or treated unfairly." *fn10" Id. at 265 (emphasis supplied). By way of contrast, the Piper Court noted that an alternative forum need not be considered "inadequate" merely because the plaintiffs would be deprived of the ability to rely upon a particular theory of liability or because their potential damage award might be smaller. Id.

 Although the materials presented to this court on the instant motion do indicate that there may be some disincentives to proceeding in the alternative forums presently available, such as smaller damage awards *fn11" or the inability to utilize a contingent fee relationship, *fn12" the court does not find that the presented potential problems rise to the level of inadequacy envisioned by the Piper Court. There is no danger that the instant plaintiffs will be deprived of any remedy or otherwise treated unfairly and this court finds that the alternative forums available in this case are adequate alternative forums for purposes of this forum non conveniens analysis.

 II. Private Interest Factors

 As private interest factors, this court must consider: A) the relative ease of access to sources of proof, B) the availability of compulsory process for attendance of unwilling witnesses, C) the cost of obtaining attendance of willing witnesses, D) the possibility of viewing the scene of the accident, and E) all other practical problems that make trial of a case easy, expeditious, and inexpensive. Piper, 102 S. Ct. at 258 n.6 (citing Gilbert, 330 U.S. at 508, 67 S. Ct. at 843); accord Pain, 637 F.2d at 786 (reciting first four factors, but not catch-all fifth factor).

 A. Relative Ease Of Access To Sources of Proof

 As the Pain court correctly noted, any evaluation of this ease of access factor must begin with an understanding of the various theories which the parties may seek to prove at the trial of these cases. Pain, 637 F.2d at 786. Combining the theories of liability which have been put forward in this case with the other important area of proof in all these cases-damages, the court finds that analysis of this first private interest factor must be broken down into an analysis of four component areas of proof: 1) evidence as to defects in the plane itself, either strict liability or negligent design or manufacture defects, 2) evidence as to improper conduct by TWA in either its training and provision of flight personnel for SAA or its maintenance of the airplane, 3) evidence as to negligent conduct on behalf of SAA, either in the maintenance or operation of the plane, *fn13" and 4) evidence as to the amount of damages suffered by plaintiffs.

 1) Evidence of this nature is needed because plaintiffs' allegations encompass claims based on the faulty design and/or manufacture of the plane involved in this disaster. *fn14" Obviously, such evidence of any defects in the plane itself *fn15" would most likely be in the possession of the plane's designer and manufacturer. Since Lockheed manufactured the plane and since Lockheed's headquarters and manufacturing plants are both located in the United States, it seems clear that any evidence regarding faulty manufacture of the plane would be in the United States. Thus, use of a United States' forum would further the ease of access to these sources of proof.

 2) Evidence of this nature is important because the plaintiffs' allegations also encompass claims of negligent and/or willful misconduct by TWA in connection with its training of SAA personnel. Although TWA is located in the United States, the training of SAA personnel apparently took place in Saudi Arabia; further, while the TWA personnel actually involved in the training of SAA personnel are probably now located in the United States, the SAA personnel actually trained are most likely still in Saudi Arabia. Because it appears that evidence from both the TWA and the SAA personnel involved in the training program will be necessary to the trial of these theories of liability, it appears that the ease of access factor is in near equipoise in this category: a United States' forum would provide greater ease of access to TWA's evidence while a foreign forum would provide better ease of access to SAA's evidence. Because TWA's evidence might be somewhat more important to the proceedings on these theories of liability than SAA's evidence, the court finds that the ease of access factor is tipped ever so slightly in favor of a United States forum for this category of evidence.

 3) Evidence of this nature is needed because the plaintiffs' allegations also encompass claims based on the negligent and/or improper maintenance and/or operation of the plane involved in this disaster. Since SAA was responsible for maintaining the plane and was, in fact, operating the plane at the time of the events in question and since SAA's base of operations is located in Saudi Arabia, it appears that any evidence relating to SAA's misconduct in this case would be located in Saudi Arabia. Thus, use of a foreign forum would provide better ease of access to these sources of proof.

 4) Evidence of this nature obviously lies at the heart of the plaintiffs' claims for relief in these cases. It seems beyond dispute that the vast majority, and most likely all, of the evidence relating to measurement of the damages suffered by plaintiffs is located in the domicile of each foreign decedent. See Piper, 102 S. Ct. at 259; Pain, 637 F.2d at 787-88. Thus, use of a ...


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