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FRIENDS FOR ALL CHILDREN, INC. v. LOCKHEED AIRCRAF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


March 16, 1984

FRIENDS FOR ALL CHILDREN, INC., as legal guardian and next friend of the named 150 infant individuals, et al., Plaintiff,
v.
LOCKHEED AIRCRAFT CORPORATION, Defendant and Third-Party Plaintiff, v. THE UNITED STATES OF AMERICA, Third-Party Defendant; MARGALI JOSE PATRICIA MAUPOINT, etc., Plaintiff, 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 *fn1"

 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. *fn2" 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. *fn3" 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. *fn4" 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 *fn5" 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. *fn6"

 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. *fn7" 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; and that the public interest favors such an injunction. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977).

 9. Irreparable Injury.

 Plaintiffs have convincingly demonstrated that, unless defendant provides thorough multidisciplinary diagnostic examinations soon, they will suffer irreparable injury in the years it will take before their cases can be tried. There was substantial expert testimony, some of it from defendant's own expert physicians, that many, if not all, of these children should be thoroughly examined immediately. The urgency arises from the fact that many of the alleged disorders they may have can be adequately treated and the disabling symptoms minimized only if identified early in life, and certainly before the onset of adolescence. Most of these children are now between nine and eleven years old. Any further delay in the provision of diagnostic examinations, whether it be due to further litigation or to the financial hardship of the plaintiffs, will be disastrous. Substantial and persuasive evidence was presented during the hearing that almost none of the foreign children has yet received the comprehensive set of diagnostic examinations appropriate under the circumstances. Defendant and plaintiffs' counsel blame each other for the lack of examinations to date, and there is certainly more than enough blame to go around. *fn9" The time for finger-pointing is at an end, however, and now is the time for action at least to preserve the status quo by identifying plaintiffs' current medical condition with a view to preventing further deterioration pending trials.

 10. Inadequate Legal Remedy.

 The "status quo" in this litigation is that defendant has stipulated that it is liable to plaintiffs for compensatory damages proximately related to the crash, and that each plaintiff is entitled as a matter of law to compensation for such diagnostic examinations as the trier of fact finds are reasonable under the circumstances of the crash. Most of these plaintiffs have not received and, in the absence of interlocutory relief, will not receive appropriate diagnostic examinations until their cases are tried, which in most cases will be several years from now after they have reached or passed their adolescent years. Money damages following trial on the merits are not an adequate legal remedy for that delay. Jaffee v. United States, 592 F.2d 712, 715 (3d Cir. 1979), cert. denied, 441 U.S. 961, 60 L. Ed. 2d 1066, 99 S. Ct. 2406 (1979), is distinguishable because here, unlike in Jaffee, (a) defendant has stipulated that it is liable for compensatory damages, (b) the Court has entered a partial summary judgment that defendant is liable for reasonable diagnostic examinations, and (c) the extreme delay inherent in the complexity of this unique litigation, the number of plaintiffs, and the litigation tactics of the defendant renders any ultimate award of damages inadequate to remedy the immediate needs of the plaintiffs. Under these circumstances, precedent in this Circuit is more on point than Jaffee :

 

This is one of those distinctive cases referred to by Judge, later Chief Justice, Taft, in which "the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict irreparable injury." Toledo RR v. Pennsylvania Co., 54 F. 730, 741 (CC Ohio 1893). Mandatory, not merely prohibitory, relief is required at this stage to prevent continuing injury to the plaintiffs, irreparable in nature.

 Cole v. Lynn, 389 F. Supp. 99, 105 (D.D.C. 1975) (Gesell, J.).

 11. Substantial Likelihood of Success on the Merits.

 Plaintiffs have made a strong showing that they are likely to succeed in persuading triers of fact that this plane crash put the children on board at risk of neurological, psychological, or brain injury. This is not to say that they will necessarily convince the jury that each particular child is in fact injured. But plaintiffs have made a strong showing that defendant's theory of the crash -- which is that there was a decompression followed by a "soft" landing in a rice paddy which could not possibly put plaintiffs at risk of neurological injury -- is untenable. They have made a strong showing that there was an explosive decompression and a violent crash that put each child on the plane at risk of incurring neurological or psychological injuries. As defendant is liable as a matter of law for such diagnostic examinations as the trier of fact finds is reasonable under the circumstances, plaintiffs have therefore made a strong showing that, at a minimum, juries will find defendant liable for the costs of diagnostic examinations to determine whether the risk of neurological injury created by the crash has ripened into an actual injury in each child's case.

 12. Balance of Hardships.

 Any expense and inconvenience to defendant from a properly limited preliminary injunction providing diagnostic examinations to the plaintiffs is far outweighed in a balancing of the equities by the serious threat of harm to the plaintiffs. Defendant argues that it may not be able to recover monies expended on particular plaintiffs after a jury trial should a verdict be rendered for the defendant. The Court has taken this argument into account in denying plaintiffs' motion for a preliminary injunction awarding them reimbursement for interim fees, medical treatment, and educational treatment. Yet plaintiffs have made a much stronger showing that they will succeed in recovering the costs of diagnostic examinations, and that the immediate receipt of those examinations is a prerequisite to meaningful treatment for their injuries, if any. It also is possible that the performance of diagnostic examinations now, with the expenses carefully monitored by the Court, will cost defendant significantly less in the long run than what juries might award to compensate for unmonitored examinations by the plaintiffs far in the future. Prompt, thorough diagnostic examinations may identify disorders that can be treated and minimized now (pendente lite, the treatment will not originally be at defendant's expense). If such examinations are delayed and an ailment is later discovered and determined to be a proximate result of the crash, defendant might end up paying far more in damages, both for treatment and the consequences of the long delay in provision of it.

 13. The Public Interest.

 The public interest clearly favors a preliminary injunction. By assuring that these diagnostic examinations are performed now, the injunction may minimize the burden these plaintiffs impose on the health care systems of the countries in which they live. The diagnostic examinations may also have a beneficial side-effect on this protracted litigation: they may finally produce the sort of hard data on the medical condition of these children that defendant purports to require before it will even consider settlement of these cases. These cases have imposed a considerable strain on the resources of this Court. For example, it is not uncommon for a discovery dispute in these cases to consume thousands of pages of briefs, memoranda and exhibits, numerous motions, and many hours of the Court's limited time. Such disputes, if isolated, would be manageable. They arise, however, virtually every week. At a time when the Chief Justice of the United States publicly protests the excessive costs of litigation, it is clear that diagnostic examinations that could facilitate settlement of these cases would serve the public interest in containing the time and expense consumed in this kind of overlitigated dispute.

 14. In making these findings, the Court has been fully mindful of the mandate of Schneider, supra, 658 F.2d at 852, that each child's circumstances are unique and should be separately assessed. Stretched to its limit, this principle might require this Court to review medical records and testimony on each child individually in 70 separate hearings to decide what, if any, further diagnostic examinations are appropriate for each child. But the delay inherent in that process would effectively deny plaintiffs the relief they seek: prompt diagnostic examinations while effective treatment is still possible. The Court has already held three weeks of hearings and reviewed medical records on almost every child. Even more than previously, see Friends for All Children v. Lockheed Aircraft Corporation, 87 F.R.D. 560 (D.D.C. 1980), the evidence shows that every one of these children is at risk of neurological injuries and other disorders due to exposure to the conditions of the crash. Nevertheless, in accordance with the individualized attention mandated by Schneider, the preliminary injunction establishes a procedure whereby a panel of experts is to decide what further tests, if any, are suggested for each particular child. The tests given each child will vary according to the symptoms observed and the medical records on the child that are already available. The defendant will have an opportunity to argue briefly in writing that the record does not make a strong showing that the particular plaintiff is likely to succeed in persuading the trier of fact that defendant should pay the cost of that particular examination. The funds to pay for the examinations will be held by the Clerk of Court in interest bearing accounts or securities. Defendant will also be entitled to request that plaintiffs post a bond prior to payment from the Registry for the particular expenses to which it has a particular bona fide objection. The Court will rule promptly on each objection. As ordered, unexpended funds should revert to defendant with interest unless plaintiffs show good cause why the unexpended funds should not revert.

 15. Plaintiffs' counsel are not entitled, prior to trial on the merits, to attorneys' or guardian's fees from the defendant for their work on these motions. More than 90% of the relief they sought has so far been denied. Plaintiffs contend that the conduct of defendant in defending against plaintiffs' motion was in bad faith, and constituted vexatious, wanton, or oppressive conduct within the meaning of Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 258, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). However, jurisdiction in these cases is by diversity, see Alyeska, supra, 421 U.S. at 259 n.31, and the law of the District of Columbia does not now appear to permit an award of attorneys' fees even under the extreme circumstances alleged here. See 15 D.C. Code § 701(a).

 16. In assessing the likelihood of plaintiffs' success on the merits, the Court has given no weight to plaintiffs' contention that they will be able at trial to ask finders of fact to draw inferences adverse to the defendant from the destruction of relevant evidence. *fn10" That contention was entitled to no weight given the following conclusions of the Court that underlie its February 23, 1984, ruling on the adverse inference issue in Maupoint.

 17. The condition of the interior of the troop compartment and its passengers following the crash will be a critically disputed issue of fact in the foreign infant cases. In earlier trials, plaintiffs have argued that the troop compartment was subjected to several severe jolts of great force and that fire and smoke were in the troop compartment during and after the crash. Lockheed and the United States maintained, to the contrary, that the troop compartment slid to a gentle landing and that relatively mild forces were felt by its occupants. Since most, if not all, of the foreign infants were passengers in the troop compartment, it is inevitable that this same dispute will arise in the foreign cases.

 18. Evidence of damage to the interior of and fixtures in the troop compartment or of traumatic injury to the passengers inside it would tend to support plaintiffs' theory of the crash. Evidence that the interior and its fixtures were relatively undamaged or that passengers were unscathed would tend to support defendant's "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) *fn11" 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.


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