"soft landing" theory. Plaintiffs allege, however, that after-crash photographs of the interior of the troop compartment and the condition of the seats and other fixtures as well as autopsies of the child or children who died in the troop compartment have been destroyed. Citing International Union (UAW) v. N.L.R.B., 148 U.S. App. D.C. 305, 459 F.2d 1329 (D.C. Cir. 1972), plaintiffs argue that they are entitled to attempt to persuade juries to draw inferences adverse to defendant from this destruction of evidence.
19. As the Court has previously noted, see Memorandum of January 31, 1984, the 1982 Stipulation of Compromise Settlement approved by the parties does not bar application of the evidentiary principle known as the adverse inference rule. Defendant's February 8, 1984 Motion for Reconsideration of the January 31, 1984 Memorandum must be denied.
20. Before a jury may be permitted to draw an inference adverse to the defendant, plaintiffs must establish, at a minimum, that relevant evidence existed, that it was within the ability of the defendant to produce it, and that it has not been produced due to the actions of the defendant. If the defendant in this litigation were the United States, plaintiffs would have succeeded in carrying this burden. The Court finds from the testimony at the hearing and the entire record (a) that numerous photographs of the interior of the troop compartment were taken during the United States Air Force investigation of the crash; (b) that these photographs were the subject of discovery requests from the plaintiffs as early as 1975; (c) that Air Force Regulations required Air Force personnel to preserve this kind of evidence, and make it accessible to persons allegedly injured in the crash without any limiting privilege claim; (d) that many of these photographs along with voluminous other evidence were intentionally destroyed by the Air Force in 1977 or 1978; (e) that an attorney for the United States (who was present in December 1975 when Lockheed's counsel represented to the late Chief Judge William B. Jones that to his knowledge all documents had been preserved)
learned of this destruction by May 1978 at the latest, appeared frequently before the Court thereafter, and nevertheless failed to inform the Court or the plaintiffs of this destruction until 1980; and (f) that, although copies of some of the destroyed photographs were later discovered and produced, other photographs, including some photographs of the interior of the troop compartment, still have not and can never be produced.
But however questionable its conduct, the United States is not the defendant in this litigation. Even if it was, the jury hearing the case against Lockheed would not be privileged to draw any adverse inference against that defendant because of the Air Force's misconduct. Plaintiffs have a more difficult burden in establishing the prerequisites of an adverse inference against Lockheed.
21. Plaintiffs have not adequately shown that autopsies of the infant or infants who died in the troop compartment were ever conducted, or that autopsy reports were prepared, or that those reports could ever have been produced by Lockheed.
22. Plaintiffs have adequately shown that photographs of the interior of the troop compartment existed that have not as yet been produced. In addition, they have shown that many, although not all, of such troop compartment photographs were taken by Lockheed employees who participated in the accident investigation. These photographs, as well as the photographs taken by Air Force participants in the accident investigation, were known to Lockheed through its close involvement in the accident investigation. Photographs taken by Lockheed employees were returned to the Air Force at the conclusion of the investigation. Lockheed and the United States cooperated throughout the investigation and have worked together through much of the defense of this litigation.
23. Plaintiffs have also convincingly demonstrated that, but for the action and inaction of Lockheed and its counsel, the missing photographs of the interior of the troop compartment would have been produced. Most significantly, on December 18, 1975, plaintiffs' counsel formally requested that Chief Judge Jones enter a protective order that would have preserved the photographs. In opposing the issuance of a protective order, Carroll Dubuc, counsel for Lockheed, represented to Chief Judge Jones that
any relevant documents known to [Lockheed] have been preserved. . . .
(Tr. 12/18/75 at p.83). Chief Judge Jones thereupon denied the motion for a protective order. There is abundant evidence in the record of cooperation between Lockheed and the Air Force from which to infer that, if, after Chief Judge Jones denied the motion in reliance on Lockheed's representation, Lockheed had requested the Air Force to preserve the photographs, the Air Force could and would have done so. Lockheed's attorney-client, work-product and "executive privilege" claims, of dubious merit, also contributed to the delay in production of the relevant photographs and the delay in discovering that relevant evidence had been destroyed.
24. It is therefore clear that relevant evidence existed which had not been produced, that Lockheed could have taken actions to preserve this evidence after its representation to Chief Judge Jones, and that, but for Lockheed's failure to take action, the relevant evidence would not have been destroyed. Were it up to this Court alone to create a standard for this Circuit, Lockheed might be held to a strict fiduciary obligation to make good on its representation to Chief Judge Jones and might be held subject to an adverse inference for the breach of the fiduciary obligation that it there assumed. Or Lockheed's representation to Chief Judge Jones might be held to estop it from later denying or equivocating about its control of the documents. Defendant has argued, however, that the evidence must show bad faith or evil intent on its part in the actual destruction of the photographs before an adverse inference instruction to the jury is appropriate. Defendant cites Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975), in support of this argument. Although it is unclear whether the bad faith standard announced in Vick has been or would be adopted in this Circuit, Vick is the existing authority and should be followed unless and until our Court of Appeals indicates a contrary intent.
25. Plaintiffs have adduced considerable probative evidence in the form of documents and live testimony by hostile Lockheed officials that Lockheed deliberately limited the records which it made and retained about the crash, that it made dubious privilege claims to delay discovery, and that it quickly shipped to the Air Force photographs and other discoverable evidence that it had with the expectation that the Air Force would further shield them by privilege claims. In doing so, Lockheed failed to take any precautions to assure that the evidence would be preserved. Nevertheless, the evidence is equivocal on the issue of whether Lockheed officials possessed evil intent or bad faith concerning the actual destruction of evidence by the Air Force. For that reason, the bad faith standard of Vick, supra, is not satisfied. Plaintiff Maupoint will therefore be precluded from introducing evidence concerning the destruction of evidence at her trial and from attempting to persuade a jury to draw an inference adverse to the defendant from that destruction. This ruling and the findings upon which it is based apply only to this recently completed phase of the preliminary injunction hearing and to the Maupoint case. These findings are not intended to apply to the cases of other foreign infant plaintiffs.
26. There is a second ground for precluding application of the adverse inference rule under these circumstances. The Court had hoped that, if adverse inference claims were to be raised before a jury, the testimony, affidavits, and exhibits offered into evidence could be strictly contained within the narrow framework envisioned by the pretrial orders in Kurth II. See Kurth v. Lockheed Aircraft Corporation, No. 80-3223, Orders of February 1, 1983; July 1, 1983; and September 7, 1983. The Kurth orders contemplated that adverse inferences might be drawn simply from proof of the original existence and destruction of photographs and of the fact that defendant had some responsibility for such items of evidence while engaged in or anticipating litigation about the crash. So constrained, the evidence concerning an adverse inference would have been more probative than prejudicial. The recent hearing indicates that if the plaintiffs have the burden of proving bad faith on the part of defendant, the focus of trial is likely to be distorted by lengthy and inflammatory testimony about the propriety of Lockheed's conduct not only in this litigation, but also in activities ranging from bribery of foreign officials to destruction of computer data on U.S. Congressmen. As the Court originally concluded before the first Kurth trial, the litigation before a jury of the issue of whether Lockheed acted in bad faith in such circumstances would be more prejudicial than probative and would be likely to divert the jury's attention from the central issues in the case. Thus, if plaintiffs must prove defendant's bad faith before they can present the adverse inference issue to the jury, the risk of distortion of the trial precludes plaintiffs' opportunity to raise the adverse inference issue in the Maupoint trial.
27. It would be improper as a matter of District of Columbia law for juries in the foreign infant cases to consider collateral sources of payments for medical services such as the foreign social insurance programs or nationalized health systems. Plaintiffs' argument that the Court's ruling of June 18, 1980, is the law of the case on this issue is persuasive. Even assuming that were not the case, it is clear that, under the interest analysis approach to choice of laws applied in the District of Columbia, see, e.g., Williams v. Williams, 390 A.2d 4, 5-6 (1978), foreign jurisdictions have no interest in applying their law to damages issues if it would result in less protection to their nationals in a suit against a United States corporation. See In Re Paris Air Crash of March 3, 1974, 399 F. Supp. 732, 745 (C.D. Cal. 1975); In Re Air Crash Disaster at Mannheim, Germany on September 11, 1982, 575 F. Supp. 521, slip op. at 10-12 (E.D. Pa. 1983). The United States and the District of Columbia have a significant interest in applying their law. Cf. Friends for All Children, Inc. v. Lockheed Aircraft Corporation, 230 U.S. App. D.C. 325, 717 F.2d 602, 609-10 (D.C. Cir. 1983). The applicable law in this diversity litigation is therefore the law of the District of Columbia. Defendants have offered no plausible support for their argument that the District of Columbia would apply its collateral source rule to exclude consideration of payments by an American social insurance program while at the same time permitting consideration of payments by foreign social insurance programs. It is much more plausible to believe that the District of Columbia would follow the one relevant American case on point, Chapman v. Brown, 198 F. Supp. 78 (D. Hawaii 1961) (collateral source rule bars consideration of medical expense reimbursement by public agency of a Canadian province), aff'd sub nom. Brown v. Chapman, 304 F.2d 149 (9th Cir. 1962), and exclude consideration of payments from foreign governmental insurance programs. The rule in Chapman will therefore be followed in the Maupoint case.
28. Should plaintiffs appeal the denial of a preliminary injunction for medical treatment, educational services, and guardian's fees, or should defendant appeal the granting of a preliminary injunction for diagnostic examinations, the Court will consider certifying the foregoing rulings on adverse inference and collateral source for review by the Court of Appeals simultaneously with review of the preliminary injunction. 28 U.S.C. § 1292(b).
29. Plaintiff Maupoint's February 22, 1984, motion to amend her complaint must be granted because, assuming the truth of the facts alleged in her supporting memorandum, justice would require that she be granted leave to amend even at this late date. Fed. R. Civ. P. 15(a). Plaintiff's new claims are not invalid on their face, and there is some evidence in the record, including evidence produced for the first time on March 5, 1984, which may support plaintiff's fraud and breach of contract claims. It is impossible for the Court to resolve all the complex issues raised by defendant's opposition to plaintiff's motion now; these arguments are best briefed, and addressed, in the context of a motion to dismiss or a motion for summary judgment. To prevent any prejudice to the parties, whose counsel are now preparing for trial commencing April 3, 1984 on plaintiff Maupoint's previous tort claims, the February 23, 1984, order stayed all discovery, pretrial, and trial proceedings on plaintiff Maupoint's new claims until after trial on the merits of her previous tort claims.