The opinion of the court was delivered by: OBERDORFER
This litigation is before the Court on plaintiffs' motions for partial summary judgment and a preliminary injunction. The 70 or so plaintiffs are orphans who were aboard a Lockheed-built and Air Force-operated C-5A military transport plane when it crashed near Saigon, Vietnam, on April 5, 1975, and who were subsequently adopted by families in Europe and Canada. The first of these foreign infant cases, that of the French child Margali Maupoint, is set for trial on April 3, 1984. Through their guardian ad litem and counsel, plaintiffs have now requested that the Court enter a partial summary judgment and preliminary injunction against the defendant that would require defendant to pay the large sum of $8,700,000.00 for guardian's fees, attorneys' fees, diagnostic examinations, medical treatment, and education services, pending the outcome of the 70-odd trials on the merits.
During an exhaustive hearing on these motions, plaintiffs presented evidence and testimony to support their contention that, at trials on the merits, juries should be permitted to draw inferences adverse to the defendant from the wholesale destruction of crash-related photographs, videotapes, and documents which occurred after this litigation commenced. Plaintiffs also argued that at a trial on the merits, defendant would be precluded by the collateral source rule from introducing evidence at trials that free or subsidized health care is available to these plaintiffs in the countries where they reside. These two issues of adverse inference and collateral source have been fully briefed in the Maupoint case, and are ripe for decision.
A careful review of the evidence adduced at the hearing, the arguments of counsel, and the applicable law demonstrates that plaintiffs are not now entitled to most of the considerable relief pendente lite which they seek. They are not now entitled to ask triers of fact to draw an inference adverse to the defendant under the current law in this Circuit. Nor are they now entitled to a partial summary judgment or a preliminary injunction awarding them the costs of interim medical treatment, or interim education expenses, or the fees of the guardian ad litem, or the attorneys' fees incurred in litigating these motions.
Plaintiffs have, however, shown that the collateral source rule precludes admission of evidence at subsequent plenary trials on damage claims that plaintiffs will receive free or subsidized care in Europe and Canada. More significantly, they have convincingly demonstrated that they are entitled to a partial summary judgment that the defendant is liable for the provision of reasonable diagnostic examinations of the children. The actual cost of reasonable examinations for each child is in genuine dispute. Nevertheless, plaintiffs have also shown that they are entitled to a preliminary injunction requiring defendant to provide appropriate diagnostic examinations promptly. Defendant has presented evidence that this cost should be substantially less than what plaintiffs' experts anticipate, and although plaintiffs dispute this, the total cost to defendant of these examinations will be a fraction of the large fund sought by plaintiffs and will be minimized by the watchdog and reverter provisions built into the preliminary injunction.
These results follow from the testimony of the doctors, parents, health care experts, Lockheed and Air Force officials, and other witnesses at the three week hearing on the motions; from the thousands of exhibits admitted into evidence; from the exhaustive briefs of the parties and their proposed findings of fact and conclusions of law; from a review of the dozens of pre- and post-hearing motions of the parties; and from a familiarity with the hundreds of thousands of pages of record in this over-litigated case. In particular, the Court finds and concludes that:
1. In return for valuable consideration, Lockheed and the United States agreed in 1979 that they would not contest their liability to pay compensatory damages to these infant plaintiffs. Stipulation of September 14, 1979. The sole issue remaining for trial, according to the Stipulation, was the extent of the damages, if any, incurred by the plaintiffs as a proximate result of the Saigon crash. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 567 F. Supp. 790, 796 (D.D.C. 1983).
2. Through trials and settlements, each of the 52 American plaintiffs has recovered a substantial amount ranging from $125,000.00 to $1,000,000.00 with the average recovery exceeding $300,000.00.
Nevertheless, the Schneider decision apparently mandates that it is a genuinely disputed issue of material fact whether each particular foreign child has been injured and whether each such injury is a proximate result of the crash. Schneider v. Lockheed Aircraft Corporation, 212 U.S. App. D.C. 87, 658 F.2d 835 (D.C. Cir. 1981), cert. denied, 455 U.S. 994, 71 L. Ed. 2d 855, 102 S. Ct. 1622 (1982). Plaintiffs presented examining physicians and experts who vigorously asserted that these foreign plaintiffs suffer a variety of neurological, psychomotor, speech, and attention disorders; that these injuries are a proximate result of the crash; and that treatment is urgently needed before the condition of the children deteriorates beyond repair. Defendant presented physicians and experts who just as vigorously asserted that the plaintiffs' own evidence shows that some of these children are perfectly normal; and that, although many do suffer disorders; these disorders were not proximately caused by the crash.
This factual dispute precludes any partial summary judgment that defendant is liable for the costs of interim medical or educational treatment.
3. Defendant's and plaintiffs' experts, as usual, agreed on very little. They did agree, however, that most if not all of these children should receive a comprehensive set of diagnostic examinations
to identify their maladies, if any, and to determine appropriate treatment. The experts also agreed that the examinations should be performed without delay if there is to be meaningful treatment for the ones who suffer disorders.
4. It cannot be reasonably disputed that the need for some diagnostic examinations -- for examinations to discover whether a particular child was or is injured and whether those injuries are proximately caused by the crash -- is itself a proximate result of this particular crash. No such examination into these questions of causation would be necessary but for the fact that these children endured explosive decompression and hypoxia aboard a plane which subsequently crashed, and that after the crash they received relatively cursory, unspecialized examinations from the Air Force without any systematic follow-up by either defendant. Despite undisputed evidence in the record that the plane which crashed broke into many pieces and that many of its passengers were killed, including several who were riding in the troop compartment where most if not all of the foreign infants were seated, defendant argues that the plane probably made a soft landing which could not put all of the children at risk of neurological, psychological, or brain injury. Even accepting defendant's assertions, as the Court must on a motion for partial summary judgment, defendant has not argued that no diagnostic examinations of a child involved in such a crash is called for. Even Lockheed could not find a respectable expert to testify that there should be no medical examination whatsoever of a child following a crash under the circumstances it alleges. There has been no such testimony, and even if there were, it would be so inherently incredible as to be entitled to no weight.
Defendant may be arguing that the examinations already performed on these children -- at the crash scene, at the Seventh Day Adventist Hospital in Saigon, at the Presidio in San Francisco, and in their countries of residence -- exceed already what is called for by what defendant claims were the conditions of the crash. This claim is indeed in dispute and will be a question for the jury. For summary judgment purposes, it is enough, however, that it is not and cannot be disputed that the requirement for reasonable diagnostic examination of these children is a proximate result of the crash.
5. As defendant has stipulated that it is liable for compensatory damages proximately related to the crash, the plaintiffs are therefore entitled to a partial summary judgment that defendant is liable to each plaintiff for costs incurred in obtaining such diagnostic examinations as the trier of fact concludes were or are reasonable under the circumstances. What examinations each child required, and the reasonable costs of that child's diagnostic examinations, is contested by the parties and will be a jury question. This summary judgment is therefore rendered on liability alone and must remain interlocutory in character. Fed. R. Civ. P. 56(c).
6. Jury trials to determine the actual damages plaintiffs incurred, both for the diagnostic examinations and for such injuries, if any, that the jury finds that a particular child suffers due to the crash, are likely to take four to six weeks per child given experience with the American cases. Despite the Court's repeated efforts to promote settlement of these cases, defendant has not yet made a single settlement offer to any of the foreign plaintiffs. Resolution by trial of these cases is therefore likely to take six years or more.
7. Plaintiffs' motion for a mandatory preliminary injunction requiring defendant to pay $8.7 million for diagnostic examinations, medical treatment, guardian's fees and attorneys' fees must for the most part be denied. Citing Enercons Virginia Inc. v. American Security Bank, 231 U.S. App. D.C. 264, 720 F.2d 28 (D.C. Cir. 1983), defendant claims that a preliminary injunction in this type of tort case would be a per se abuse of discretion. Leaving aside the obvious differences between this litigation and Enercons,8 it is nevertheless obvious from a review of the record that plaintiffs have not made an adequate showing that they are entitled to have defendant pay all their medical and legal bills prior to trial on the merits of their claims. See Schneider, supra, 658 F.2d at 852.
8. Plaintiffs are, however, entitled to a preliminary injunction mandating that defendant provide such reasonable diagnostic examinations to these children as they have not yet received and are not likely to receive in normal course before they have entered the critical years of adolescence. As explained below, this conclusion follows from the Court's findings that plaintiffs will suffer an irreparable injury that is inadequately remedied at law if such an injunction is not granted; that plaintiffs have made a strong showing that they are substantially likely to recover at least the cost of reasonable diagnostic examinations when these cases are tried on the merits; that the balance of hardships strongly favors granting such an injunction; ...