Pennsylvania Court Takes New Approach in Forum Non Conveniens Dispute

On December 5, 2016, the Superior Court of Pennsylvania denied the appeal of a trial court decision to grant a forum non conveniens motion to dismiss claims brought by European family members following a fatal plane crash. The court rejected the idea that plaintiffs’ choice of forum should be given “overwhelming deference.” The court also appears to have adopted an approach favoring the qualitative comparison of categories of evidence available in the U.S. and in the alternative foreign forum. Bochetto, et al., v Dimeling, Schreiver & Park, et al., 2016 PA Super 272, Lexis 729 (Dec. 5, 2016).

The case arose from the crash of a twin-engine Piper PA-34-220T Seneca V on September 15, 2009 near Castro Verde, Portugal. The aircraft, which was manufactured by Piper Aircraft in Florida, crashed during a nighttime training exercise, killing the three occupants including a Spanish flight instructor, a student pilot who was a Dutch citizen, and a student pilot with dual Dutch-Australian citizenship. The case was initially filed in the Court of Common Pleas of Philadelphia. The plaintiffs alleged claims based on strict products liability, negligence, breach of express and implied warranties, fraud and civil conspiracy against 14 defendants, all of whom were located in the United States.

The manufacturer and some defendants filed a motion to dismiss pursuant to a Pennsylvania statute recognizing the doctrine of forum non conveniens, Pa.C.S. § 5322(e). Defendants argued that the aircraft was maintained in Portugal, the pilot was trained in Portugal, the underlying accident occurred in Portugal, the Portuguese government conducted the accident investigation, and all of the non-party witnesses and relevant documents were in Portugal, all of the decedents were from Europe, and the real parties in interest were from Europe.  The plaintiffs opposed the motion, countering that all the evidence related to the design and manufacture of the aircraft was located in the United States, the negligence claims against the foreign defendants were untenable, and the flight school had a strong presence in the United States.

The trial court granted the motion, and the plaintiffs appealed. Citing Pennsylvania law and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257–58 (1981), The Superior Court of Pennsylvania held that the trial court erred when it limited its discussion to those forum non conveniens factors that were specific to Pennsylvania, and did not address the network of connections to the United States as a whole. 2016 PA Super 272, Lexis 729 at *6.

The plaintiffs argued that they were due greater deference in their choice of forum in this case because “the choice was between Portugal, where no defendant or plaintiff is located, and the United States where all of the defendants reside, where the evidence supporting plaintiffs’ claims is maintained, and where the misconduct causing the accident occurred.” 2016 PA Super 272, Lexis 729 at *17.

The appellate court reasoned that although the plaintiffs were correct that their home countries of Spain, the Netherlands, and Australia may not present the most convenient forums, that did not mean that plaintiffs had “free choice” of any other forum since in a global case such as this, no one jurisdiction may stand out as convenient. The trial court was required to give some deference but not overwhelming deference to plaintiffs’ choice of forum.

The court analyzed the trial court’s methodology in balancing public and private interests, and noted that the trial court did conclude that some items weighed in favor of an American forum.  For example, evidence relating to aircraft design, original and subsequent American owners, and maintenance before the plane was sold to a European company were all located in the United States. The appellate court looked approvingly on the trial court’s comparison of the availability of other categories of evidence, such as the location of evidence related to more recent aircraft maintenance and pilot error in Portugal. The more relevant evidence was the documentation of maintenance and upkeep after the aircraft was sold to the Belgian company that leased it to the Portuguese flight school. By engaging in such a qualitative assessment of the evidence and its importance, rather than merely counting up items in a list, the appellate court found that the district court did not abuse its discretion and affirmed the dismissal of plaintiffs’ case.  2016 PA Super 272, Lexis 729 at * 22.

Pilot Mental Fitness in the Context of the International Mental Health Crisis

Aviation lawyer
Scott Brooksby, Portland product liability and aviation lawyer

Pilot Mental Fitness in the Context of the International Mental Health Crisis

by Scott Brooksby, Olson Brooksby PC

“But nobody ever thought about having to protect the passengers from the pilots”

David Neeleman, founder and former CEO, Jet Blue

Introduction

The importance of pilot mental fitness is not a new concept.  However, pilot mental health has been the subject of ferocious scrutiny in the wake of Germanwings 9525 and MH370.  Perspectives on detecting, reporting, treating, and monitoring pilot mental health, and the associated regulatory framework may be different for various groups of interested parties including:  (1) the flying public; (2) the airlines; (3) the regulators; and (4) pilots and crew.  Some knowledgeable observers, including the first TSA Administrator John Magaw, have been quoted raising questions about whether or not reinforced cockpit doors are too secure, and should provide a way back in the cockpit.  http://www.popularmechanics.com/flight/a10270/in-light-of-mh370-evidence-could-plane-cockpits-be-too-secure-16611747/

Overview of Germanwings 9525

  • On March 24, 2015, the A320 aircraft was on a scheduled flight en route from Barcelona to Dusseldorf, with 144 passengers and a crew of six.
  • The 27 year-old co-pilot, Andreas Lubitz, had been flying for Germanwings since June, 2014.
  • Lubitz’s First Class Medical Certificate was issued in April 2008, and had been renewed yearly.
  • Since July, 2009, the medical certificate had contained a waiver due to a prior major depressive episode without psychotic symptoms that lasted from 8/08-7/09.
  • The waiver in the medical certificate provided that the certificate would be revoked if there was a relapse into depression.
  • In December, 2014, Lubitz experienced symptoms consistent with the onset of a psychotic depressive episode.
  • Lubitz then consulted with several doctors, including a psychiatrist, who prescribed an anti-depressant.
  • None of the doctors notified the authorities or Germanwings.
  • Lubitz waited until he was alone in cockpit at cruise altitude, and then he changed the selected altitude from 38,000 feet to 100 feet, leading to a steady descent into terrain.
  • He also increased and decreased the airspeed inputs multiple times.
  • Lubitz ignored the PIC pounding on the cockpit door, and calls from civilian and military air traffic controllers and from other aircraft and kept cockpit door locked.
  • Lubitz had practiced similar inputs on a flight earlier that day.
  • The official BEA investigation concluded that the crash was intentional.

The crash in the French Alps was investigated by French Authorities, with assistance from their German counterpart, the Federal Bureau of Aircraft Accident Investigation (“BFU”), with assistance from the F.B.I.  The Bureau d’Enquêtes et d’ Analyses (“BEA”) released its preliminary report on May 6, 2015 and its final report on March 13, 2016.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiGgKbt7u7NAhUY_WMKHVF7ApUQFggcMAA&url=https%3A%2F%2Fwww.bea.aero%2Fuploads%2Ftx_elydbrapports%2FBEA2015-0125.en-LR.pdf&usg=AFQjCNE7DAUyu78jJpgHb8wZt8yKS9yjhw

On March 27, 2015, just three days after the crash, the European Aviation Safety Agency (“EASA”) issued a temporary recommendation that air carriers insure that at least two flight crew members, including one pilot, occupy the flight deck at all times during a flight.

The Mental Health Landscape

It is not a secret that there is a mental health crisis in the United States.  According to the CDC, a staggering 25% of the U.S. adult population has some form of mental illness. https://www.cdc.gov/mentalhealthsurveillance/

According to the CDC, suicide is the ninth leading cause of death, with more than 42,000 suicides in 2014.  http://www.cdc.gov/nchs/fastats/leading-causes-of-death.htm  Alarmingly, suicide is the second leading cause of death for the age group 25-34 and the fourth leading cause of death for those 35-54.  http://www.cdc.gov/violenceprevention/suicide/statistics/

An estimated 9.3 million adults in the U.S. reported having suicidal thoughts in 2013.  Females are more likely to have suicidal thoughts than males, but males take their own lives at nearly four times the rate of females, and account for 77.9% of all suicides.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwi7_pyX–vNAhXHLmMKHSVMDzQQFgglMAE&url=http%3A%2F%2Fwww.cdc.gov%2Fviolenceprevention%2Fpdf%2Fsuicide-datasheet-a.PDF&usg=AFQjCNGVGU8yBJOrXug-MxYn58gTllTr3Q

All of the commercial aviation disasters attributed to pilot mental health issues have involved male pilots. There have been no commercial disasters attributed to mental health involving U.S. Carriers.  A 2006 study by the FAA notes that between 1993 and 2002, there were 3648 fatal aviation accidents.  The NTSB concluded that there were 16 aircraft-assisted suicides, and one incident involving a flight student who intentionally exited a plane.  All 16 incidents involved general aviation.  The median age range for pilots in those incidents was 40 (15-67).  https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&cad=rja&uact=8&ved=0ahUKEwj8k5S-muzNAhUWS2MKHboVDHkQFghGMAY&url=https%3A%2F%2Fwww.faa.gov%2Fdata_research%2Fresearch%2Fmed_humanfacs%2Foamtechreports%2F2000s%2Fmedia%2F200605.pdf&usg=AFQjCNGjEu9KMnh2nG0vyiCuvYoRD1Dqbg

Another study examined statistics on aircraft assisted suicide in the context of general aviation, and concluded that there were 37 cases in which pilots either committed or attempted to commit suicide between 1983 and 2012.  38% of the pilots had psychiatric problems, 40% of the pilots in suicides or attempts had legal problems, and 46% of the pilots had domestic or social problems.  http://www.ingentaconnect.com/content/asma/asem/2005/00000076/00000008/art00001?crawler=true&mimetype=application/pdf http://time.com/3760132/germanwings-plane-crash-pilot-suicide-andreas-lubitz/

Pilot mental fitness did not emerge as an issue with the advent of Germanwings 9525.  In 2007, the Airline Pilots Association (“ALPA”) reported that 25% of the ALPA Aeromedical Office calls were mental health-related.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiMs5TrgP7NAhVO5mMKHU1xAY4QFggcMAA&url=http%3A%2F%2Fwww.alpa.org%2Fportals%2Falpa%2Fpresidentscorner%2FAug2007_MentalState.pdf&usg=AFQjCNFpDSzRrIDQBMx1wZT9rOY-OJmxeQ&bvm=bv.127178174,d.cGc

Despite an apparent recognition among their own ranks that pilot mental fitness is an important issue, the pilot unions in most of the commercial crashes of the last three decades reacted skeptically, or even disputed, at least initially, claims by investigators that the crashes were intentional.

A 2014 study examined aircraft-assisted suicides in the United States, United Kingdom, German and Finland between 1956 and 2012.  The study concluded that in the United States, for the 20 year period 1993-2012, the aircraft assisted suicide rate was 0.33%.

http://www.ingentaconnect.com/content/asma/asem/2014/00000085/00000008/art00010

Despite the horrifying circumstances surrounding flights such as Germanwings 9525, mental health issues arise with statistical irregularity in commercial aviation, and investigators do not always agree on the role played by mental health.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwicxab4nOzNAhVN4mMKHTdxCyAQFggcMAA&url=http%3A%2F%2Fflightsafety.org%2Ffiles%2FASWarticles%2FStatesofmind.pdf&usg=AFQjCNG567O-toF4PIsxFhGicPbpvDt3BQ&bvm=bv.126130881,d.cGc

Overview of Medical Certificate Requirements

FAA regulations require airline pilots to undergo a medical examination with an FAA-approved physician called an Aviation Medical Examiner (“AME”) every six to twelve months depending on the pilot’s age. http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=20455

According to the Guide for Aviation Medical Examiners, “The FAA does not expect the Examiner to perform a formal psychiatric examination.  However, the Examiner should form a general impression of the emotional stability and mental state of the applicant.”  FAA Guide for Aviation Medical Examiners, 137 (2015).

The Guide also explains how the Examiner may become informed about possible mental health concerns based on questions and answers an applicant provides about background, occupation, and reasons for seeking a certificate.  Id. at 138-39.  If the AME believes there may be mental health concerns, the Examiner is instructed to either deny the certificate or defer issuing the medical certificate and note the mental health issues on the examination report.  If the medical certificate application is deferred, the Examiner is to report the findings to the FAA, which will then request further evaluation and information from the applicant.  Id. at 139.

In the United States, there are three types of medical certificates.  14 C.F.R. Part 61.  A first-class medical certificate, which is required for airline pilots, expires twelve months after the date of the medical examination for pilots under age 40, or six months after the date of the examination for pilots over age 40 at the time of the most recent medical examination.

According to 14 C.F.R. § 67.107,

  • Mental standards for a first-class airman medical certificate are:
  • (a) No established medical history or clinical diagnosis of any of the following:
  • (1) A personality disorder that is severe enough to have repeatedly manifested itself by overt acts.
  • (2) A psychosis. As used in this section, “psychosis” refers to a mental disorder in which:
  • (i) The individual has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition; or
  • (ii) The individual may reasonably be expected to manifest delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition.
  • (3) A bipolar disorder.
  • (4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years. As used in this section –
  • (i) “Substance” includes: Alcohol; other sedatives and hypnotics; anxiolytics; opioids; central nervous system stimulants such as cocaine, amphetamines, and similarly acting sympathomimetics; hallucinogens; phencyclidine or similarly acting arylcyclohexylamines; cannabis; inhalants; and other psychoactive drugs and chemicals; and
  • (ii) “Substance dependence” means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by –
  • (A) Increased tolerance;
  • (B) Manifestation of withdrawal symptoms;
  • (C) Impaired control of use; or
  • (D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning.
  • (b) No substance abuse within the preceding 2 years defined as:
  • (1) Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
  • (2) A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
  • (3) Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds –
  • (i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
  • (ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.
  • (c) No other personality disorder, neurosis, or other mental condition that the Federal Air Surgeon, based on the case history and appropriate, qualified medical judgment relating to the condition involved, finds –
  • (1) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
  • (2) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.

The same standard applies to second-class and third-class airman medical certificates in 14 C.F.R. § 67.207 and 14 C.F.R. § 67.307, respectively.

Europe

Medical regulations associated with obtaining a medical certificate in Europe are arguably less specific than those in the United States.  The European Aviation Safety Agency (“EASA”), headquartered in Cologne, Germany has oversight responsibility for aviation safety in the European Union.  Commission Regulation (EU) 1178/2011 technical requirements pursuant to Regulation (EC) 216/2008, 2011 O.J. (L311) 175 (EASA Piloting Regulations), MED.A.015

The EASA regulations provide in part:

  • Applicants shall have no established medical history or clinical diagnosis of any psychiatric disease or disability, condition or disorder, acute or chronic, congenital or acquired, which is likely to interfere with the safe exercise of the privileges of the applicable licence(s).

Interestingly, the EASA regulations contain a specific provision addressing self-harm, and provide that “[a]pplicants with a history of a single or repeated acts of deliberate self-harm shall be assessed as unfit.”  MED.B.055.

The European regulations related to alcohol and drug use are also much more abbreviated than those applicable in the United States, and provide that “[a]pplicants with a mental or behavioral disorder due to alcohol or other use or abuse of psychotropic substances shall be assessed as unfit pending recovery and freedom from substance use and subject to satisfactory psychiatric evaluation after successful treatment.  Id.

Recent Regulatory Action

In response to Germanwings 9525 and MH 370, the FAA chartered the Pilot Fitness Aviation Rulemaking Committee (“ARC”) on May 11, 2015.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjZta_TuOzNAhVmHGMKHamWAX0QFggcMAA&url=http%3A%2F%2Fwww.faa.gov%2Fregulations_policies%2Frulemaking%2Fcommittees%2Fdocuments%2Fmedia%2Fpfarc-51115.pdf&usg=AFQjCNEkKMDyQJHjWUO8XlKwQYbzihamQw&bvm=bv.126130881,d.cGc

The ARC released its report on November 18, 2015.  The report generally concluded that the best strategy for minimizing the risk associated with pilot mental health is to create an environment that encourages and is supportive to voluntary self-disclosure.  The report recognized, however, that even when symptoms are recognized, pilot mental fitness issue self-reporting may be perceived as a high risk situation, with financial, and even career-ending implications.  The report contained eight recommendations:

  1. Enhance AME Training. The FAA should ensure all Aviation Medical Examiners demonstrate knowledge in assessing basic mental health concerns, and enhance AME training on this topic.
  2. Psychological Testing. The ARC does not recommend mandating formal psychological testing during the pilot hiring process nor as part of routine FAA aviation medical examination beyond those which already exist.
  3. Pilot Assistance Programs. Air carriers should develop effective pilot assistance programs.
  4. Air Carrier Education. Air carrier operators should be encouraged to implement mental health education programs…improve awareness and recognition of mental health issues, reduce stigmas, and promote available resources to assist with resolving mental health problems.
  5. Informational Material on Pilot Support Programs. The FAA should assemble and disseminate information on benchmark pilot support programs…to serve as a resource for air carriers to develop new or improve existing programs.
  6. Medical Professional Reporting. Encourage advocacy for a uniform national policy on mandatory reporting of medical issues that affect public safety.
  7. Two Persons on Flightdeck and Flightdeck Access. The ARC recommends no changes to the guidance found in applicable FAA orders.
  8. Aircraft Design Standards. The ARC believes existing aircraft and flightdeck door design standards are adequate and no changes are required by the FAA.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwino7KiuOzNAhVjF2MKHebTBakQFggcMAA&url=https%3A%2F%2Fwww.eurocockpit.be%2Fsites%2Fdefault%2Ffiles%2Ffaa_pilot_fitness_arc_report_2016.pdf&usg=AFQjCNGsAkE7pif54krzJ9kCdngKa1dH5g&bvm=bv.126130881,d.cGc

Many of the recommendations contained in the report tracked issues that the  Aerospace Medical Association (“AsMA”) had been addressing just prior to the Germanwings crash.  In fact, the AsMA Coordinating Chair had just discussed the issues at the 2014 European Society of Aerospace Medicine conference in Bucharest, Romania in September, 2014, a few months before the crash of Germanwings 9505.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwigz6HGu-zNAhUD6mMKHbxGCdYQFggcMAA&url=https%3A%2F%2Fwww.asma.org%2Fasma%2Fmedia%2FAsMA%2Fpdf-policy%2F2015%2FMental-Health-Screening-in-Aviators.pdf&usg=AFQjCNGwTH690mwDtqz8ChLiqeFU8cKnGA&bvm=bv.126130881,d.cGc

IATA and ICAO have both expressed concern about the importance in stepped up coordinated approaches to monitoring pilot mental health.

http://airlines.iata.org/agenda/monitoring-the-mental-health-of-pilots

The BEA investigation into Germanwings 9525 and the ARC report both conclude that pilot perceptions about the potentially career-ending consequences of self-reporting a mental fitness problem and the financial repercussions are serious impediments to effective self-reporting.  The BEA report noted that in December, 2014, emails created by Lubitz reflect a financial anxiety associated with his inability to obtain additional loss-of-license insurance because of the waiver in his medical certificate.

Major Commercial Crashes Involving Mental Fitness

The BEA’s preliminary report on Germanwings 9505 noted that there were only six instances of commercial flight crews intentionally crashing planes since 1980 were found in a search of ICAO and BEA databases.  It is worth noting than in two of the instances, JAL 350 and Egypt Air 990, the pilot or co-pilot were not alone in the cockpits, but other flight crew members were not able to regain control of the plane.

  • February 9, 1982. Japan Air Lines Flight 350.  35-yer-old captain, who had just returned to work a few months earlier after a year-long medical leave for psychiatric reasons.  Despite history of psychosomatic disorder, doctors deemed him fit to fly.  McDonnel Douglas DC-8 from Fukuoka to Tokyo Haneda.  Either engaged thrust reverser or cancelled auto-pilot and threw throttles forward.  First officer and flight engineer tried to restrain him but could not.  Among 166 passengers and eight crew, 24 died.
  • August 21, 1994. Royal Air Maroc Flight 630.  Scheduled flight from Agadir, Morocco to Casablanca.  About ten minutes after takeoff, while climbing through 16,000 feet, plane (ATR-42) entered steep dive and crashed into Atlas Mountains, killing all 40 passengers and four crew members.  Investigation revealed the 32 year-old pilot intentionally turned off autopilot.  The Moroccan pilots’ union disputed any conclusion that the crash was intentional.
  • December 19, 1997. Silk Air Flight 185.  The 41 year-old captain was flying a ten month-old Boeing 737-300 with a crew of 97 passengers and a crew of seven from Jakarta to Singapore.  The captain was also a pilot in the Singaporean air force and a member of the Black Knights air force flight demonstration team.  He had 7,173 flight hours.  In July, 1997, the captain had been demoted as a line-instructor pilot after he pulled a CVR circuit-breaker for non-technical reasons to preserve a conversation.  The plane dove from an altitude of 35,000 feet in one minute, diving almost vertically into the Musi River.  The crash was independently investigated by the NTSB and the Indonesian National Transportation Committee (“NTSC”).  The NTSB concluded that the pilot deliberately caused the crash. The NTSC could not determine the cause of the crash.
  • October 11, 1999. Air Botswana.  A Botswanan pilot commandeered an ATR 42-320 and circled the airport at Gaborone, Botswana for two hours.  The pilot repeatedly threatened to crash into the Air Botswana Terminal and kill himself.  After the plane ran out of fuel, it crashed into two other ATR 42s on the tarmac, destroying all three planes and killing the pilot.   The pilot had been grounded after failing a medical exam.
  • October 31, 1999. Egypt Air Flight 990.  The scheduled passenger flight to Cairo, Egypt originated in Los Angeles and had a scheduled stopover at JFK.  The Boeing 767-300 crashed into the Atlantic Ocean about 60 miles south of Nantucket, killing all 203 passengers and 17 crew members.  At the request of the Egyptian government, the NTSB investigated the accident and concluded that the 59 year-old relief co-pilot, who had more than 12,500 flight hours, intentionally crashed the plane.  As the evidence of an intentional crash grew, the Egyptian government launched its own investigation, and attempted to revoke the request made to the NTSB to lead the investigation.  The co-pilot, a married father of five, was under stress because his youngest daughter, age 10, was undergoing medical treatment in Los Angeles.  Egypt Air had attempted to defray medical expenses on both a company and employee level.
  • November 29, 2013. LAM Mozambique Airlines Flight 470.  Embraer 190, which had just been delivered in November, 2012.  Scheduled passenger flight from Maputo, Mozambique, to Luanda, Angola.  Halfway through the route, plane crashed in Namibia.  The Republic of Namibia, Ministry of Works and Transport, Directorate of Aircraft Accident Investigation (“DAAI”) investigated.  They determined (as did the Mozambican Civil Aviation Institute) that the 49 year-old captain intentionally crashed the plane by repeatedly changing the intended altitude settings from 38,000 feet to 592 feet, deploying speed brakes and repeatedly slowing the manual speed settings.  27 passengers and six crew members were killed.  The investigation revealed that the captain’s son had been killed in a car accident, which was a suspected suicide one year earlier.  The captain was also in the process of a contentious divorce after ten years of separation, and his youngest daughter had gone through heart surgery in South Africa recently.

In addition to the six passenger flights, one incident in 1976 involved a single pilot crashing an empty plane into homes on the ground, killing 11 on the ground.

  • September 26, 1976. Aeroflot, Antonov 2. The pilot directed the plane into the block of flats in Novosibirsk, Western Siberia where his ex-wife lived, killing himself and 11 occupants.

http://news.aviation-safety.net/2015/03/26/list-of-aircraft-accidents-and-incidents-deliberately-caused-by-pilots/  http://www.nytimes.com/interactive/2015/03/26/world/history-plane-crashes-pilots.html?_r=0

Other Notable Non-Crash Events

On January 28, 2008. A London-bound Air Canada Boeing 767 was over the Atlantic when the co-pilot suffered a mental breakdown.  The experienced co-pilot became belligerent and uncooperative, “invoking God”, and refusing to fasten his seatbelt.  Other members of the crew forcibly removed the co-pilot and restrained him.  The plane diverted to Shannon, Ireland with 146 passengers and a crew of nine.  https://www.theguardian.com/uk/2008/jan/30/transport.world

http://www.cbc.ca/news/world/air-canada-flight-attendant-helped-land-plane-after-co-pilot-breakdown-report-1.734832

On March 27, 2012, Jet Blue captain Clayton Osbon, who was then 49 years-old, and who had been flying for Jet Blue for 12 years, was flying from New York’s John F. Kennedy Airport to Las Vegas’s McCarran airport.  During the flight, Osbon began making comments about “taking a leap of faith” and reportedly saying “things just don’t matter”.  Osbon also began complaining about noise and began randomly flipping cockpit controls.  He also starting ranting incoherently about Jesus, Iran, terrorists, Al Qaeda and a bomb on board.  The co-pilot had the foresight to lock Osbon out of the cabin, and he was tackled by law enforcement officers who happened to be on board and en route to a security conference in Las Vegas.  The flight was diverted to Amarillo, and an off-duty pilot who was on board assisted with the landing.  http://www.dailymail.co.uk/news/article-2121240/JetBlue-pilot-Clayton-Osbon-restrained-PASSENGERS-going-berserk-mid-flight.html

https://www.theguardian.com/world/2012/mar/28/jetblue-passengers-pilot-breakdown-osbon

Osbon was criminally charged with interfering with a flight crew in the U.S. District Court for the Northern District of Texas, and found not guilty by reason of insanity.  In a strange twist, three days after the Germanwings crash, Osbon sued Jet Blue for more than 14 million dollars, alleging the airline was negligent in permitting him to fly despite signs of mental illness.  http://www.pbs.org/newshour/rundown/former-jetblue-pilot-sues-16m-2012-midflight-meltdown/

Employment Considerations

The FARs and federal preemption generally provide the airlines with significant discretion regarding the development, implementation and enforcement of operational safety programs, including the mental fitness of flight crew members.  Federal law sets what are only minimum standards for airlines to use in the formation of safety policies.  Under the applicable statutes, “[t]he Administrator may prescribe minimum safety standards for…an air carrier to whom a certificate is issued under section 44705 of this title…”

Federal courts have generally given the airlines wide discretion to address safety.  In Johnson v American Airlines, Inc., 745 F.2d 988 (5th Cir. 1984), the court addressed American’s overhaul of the cockpit crew training, certification and promotional system following a large number of crashes in the early 1960s.  Part of the overhaul involved an “up or out” certification system requiring flight crew to train for the next highest cockpit position.  Plaintiffs sued, alleging violation of the Age Discrimination in Employment Act.  The Fifth Circuit affirmed, holding that “the airline industry must be accorded great leeway and discretion in determining the manner in which it may be operated most safely”.  Id. at 993, quoting Murnane v. American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981).

However, preemption is not without limits, even in the context of flight crew employment, and airlines are still subject to the laws of general applicability.  In the context of pilot mental health, this may include the implications of the Americans With Disabilities Act (“ADA” 42 U.S.C. § 12112).  Under the ADA, a person is considered disabled if he or she: (1) suffers from a mental or physical impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.  42 U.S.C. § 12102(2).

In Witter v Delta Airlines, 966 F. Supp. 1193, 1195-1197 (N.D. Ga. 1997), the court addressed pilot mental health in the context of an ADA claim.  Plaintiff had been employed by Delta as a pilot since 1967.  In February, 1992 plaintiff was involved in a domestic dispute with his wife, and threatened to commit suicide.  As a result, plaintiff was incarcerated, and sent for a psychiatric evaluation, after which he was transferred to another psychiatric facility at Delta’s request.  Plaintiff alleged that Delta told him that if he did not consent to psychiatric evaluation, he would be fired.  Plaintiff then voluntarily grounded himself because he believed that he was not medically fit to fly.

Plaintiff’s FAA Class I Medical Certification was set to expire in June, 1992.  Plaintiff found an AME who agreed to “help Plaintiff with this situation”.  Relying on the report of a psychiatrist to which the AME had referred plaintiff, the AME diagnosed plaintiff as suffering from bi-polar disorder, and found him unfit to fly.  Subsequently, plaintiff examined by an FAA psychiatrist who concluded that plaintiff had a “characterological problem that might be considered a personality disorder”.  The FAA psychiatrist also concluded that plaintiff should be issued a Class I Medical Certificate on the condition that he submit to semi-annual psychiatric reports.

Plaintiff was issued the Class I Medical Certification in February, 1993, and presented the certificate to Delta on March 1, 1993.  When plaintiff presented the Certificate to Delta’s chief pilot, Delta decided that plaintiff should be further evaluated by a senior AME who was also board certified in aerospace medicine.  Delta’s decision was made at least in part on the basis of the felony charge pending against plaintiff from the 1992 domestic dispute.  The senior AME concluded that plaintiff suffered from an Adjustment Disorder with Mixed Emotional Features but was qualified to fly.  The Senior AME noted in his report:

In returning Capt. Witter to the cockpit, the major concern is the possibility of a recurrence of this type of behavior reaction, especially while flying…. If it did occur again, even in the cockpit, I do not believe that it would be incapacitating from a safety point of view. Capt. Witter’s basic personality may make him a difficult person with whom to work. However, he does not have a psychiatric disorder at the present time. If any future unusual behavior indicates the occurrence of another adjustment disorder, Capt. Witter should be grounded permanently. Until then, he is qualified to fly.

Based on the report, Witter returned to line flying status in August, 2003.  In November, 1993, plaintiff flew a European rotation, during which he had a conflict with two other crew members which resulted in the crew refusing to follow his instructions.  After further evaluation, the Senior AME diagnosed plaintiff with Narcissistic Personality Disorder and possible Cyclothymia, and memorialized the findings in an April, 1994 report.  In response, Delta grounded plaintiff.  The FAA then convened a panel of six psychiatrists, who reviewed the case and concluded that plaintiff should not be returned to flight status.  The NTSB then overturned the FAA and restored plaintiff’s Class I Medical Certification.  Delta refused to reinstate plaintiff to flight status without further medical evaluation.

Plaintiff filed suit, alleging violation of the ADA.  In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) the Court ruled that for claims of discriminatory treatment in employment, a plaintiff must establish a prima facie case of discrimination by showing: (1) that he or she has a disability; (2) that he or she is a qualified individual; and (3) that he or she was subjected to unlawful discrimination because of the disability.  The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the employment action.

The court granted Delta’s motion for summary judgment, and, without ever shifting the burden under McDonnell Douglas, concluded that plaintiff was not disabled.  The court noted that the regulations under 29 C.F.R. § 1630.2(j) (2) provided guidance on the factors for determination of whether a condition is substantially limiting, which include the nature and severity of the impairment, the duration or expected duration of the impairment, and the long-term impact of the impairment. Witter, 966 F. Supp. 1198

The court found that since plaintiff’s psychological condition did not appear to be exceptionally severe, and only manifested itself while plaintiff was under stress, it did not substantially impair the life activity of working.  The court also noted that the impact of the emotional disturbance was not long-term, since the NTSB had concluded that the First Class Medical Certification should be returned.  The court also noted that plaintiff was a resident of the Atlanta area, a large metropolitan area with substantial job opportunities.  The court also reasoned that there were many other pilots in management, training and administration, and while plaintiff may not be able to fly commercially, he did not even argue that he was impaired from holding any other job.  Witter, 966 F. Supp. 1199.

As discussed above, McDonnell Douglas requires the establishment of three conditions to move forward with a case of discrimination.  If the plaintiff in Witter had established that his mental condition was a disability for purposes of the first element, he still would have had to establish that he was a qualified individual, and that he was subject to unlawful discrimination for purposes of establishing a prima facie case of discrimination under the ADA.  Although he was subjected to testing after the domestic incident and European rotation, it is unlike that those actions constitute unlawful discrimination.  Under the ADA, an employer is prohibited from conducting a medical examination after the commencement of employment unless such an examination is job-related and consistent with business necessity.  42 U.S.C.  § 12112(d)(4)(A).

Moreover, pursuant to 14 C.F.R. 67.113(c)(1), the FAA requires that in order to receive a first-class airman medical certificate, a person must not have any medical condition which renders that person “unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held”.

In Martin v Lennox Intern. Inc., a pilot suffered a heart attack and was grounded during the six-month recovery period, after which he sought re-certification from the FAA.  342 Fed. Appx. 15 (5th Cir. 2009).  After informing his employer that there would be a delay in the re-certification process while he awaited his medical certificate he was fired.  He then brought several claims, including discrimination under the ADA.  The court granted the defendant employer’s motion for summary judgment on the basis that plaintiff could not hold a medical certificate.  Therefore, it is highly unlikely that a pilot with a mental illness that would not allow him or her to hold a medical certificate would not be able to satisfy the qualification element of a prima facie case of discrimination under the ADA.

Courts have generally ruled that an employer’s request for a medical examination when the request is grounded in good faith, and where the specific facts show that an employee may not be able to perform the essential functions of his or her job.  Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 (6th Cir. 1999).

Plaintiff in Witter also brought state tort claims for intentional infliction of emotional distress and negligent hiring and retention, which were dismissed.  Plaintiff’s defamation claims against both the Sr. AME and Delta were also dismissed.  Plaintiff’s libel claims against Delta, and his claim against the Sr. AME for tortious interference with Witter’s contractual relationship with Delta were also dismissed.

Confidentiality Considerations

The BEA and ARC reports both recommend the development and implementation of a unified, coordinated system of national mental health reporting.  However, the confidentiality of medical records arises through a complicated morass of federal and state statute and common law.

Privacy Considerations Under Federal Law:

  • Although the ADA contains confidentiality provisions, the ADA generally insulates air carriers from liability in cases where pilots have a mental disability.
  • Family Medical Leave Act of 1993 (FMLA). Unique eligibility requirements apply to pilots, flight attendants and other crewmembers under the Airline Flight Crew Technical corrections Act of 2009.  Eligible if (1) worked at least 60% of the minimum number of hours scheduled to work in any given month during prior 12 month period and (2) at least 60% of the minimum number of hours that the employee was scheduled to work in any given month.
  • Aviation and Transportation Security Act (ATSA). Provides immunity for air carrier or any employee of an air carrier who makes a voluntary disclosure related to a threat to aircraft of passenger safety.  49 U.S.C.A. § 44941(b).  See, Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014).
  • Health Insurance and Portability Accountability Act (HIPAA). Contains an exception  for “uses and disclosure to avert a serious threat to health or safety.  45 C.F.R. § 164.512.

Privacy Considerations Under State Law:

  • State Constitutions
  • Common Law Actions
    • Invasion of privacy
    • Breach of Duty of Confidentiality
  • State Statutes
    • Mental Health Information Statutes
    • Medical records statutes
    • Right to privacy statutes
    • Duty to protect or warn statutes

Scott Brooksby to speak on pilot accidents and to serve on the Oregon Aviation Industries Board of Directors

The Oregon Aviation Industries Board of Directors voted unanimously on August 26, 2016, to approve Scott Brooksby’s nomination to serve on the Oregon Aviation Industries Board of Directors.

Scott’s aviation law knowledge includes pilot mental conditions that may lead to accidents.  He will be speaking on this subject at the Columbia Aviation Association, www.caapilots.com, on Thursday September 1, 2016, with a focus on Germanwings Flight 9525 that impacted a mountain in March 2015.

Scott’s many years of experience in aviation litigation, his industry connections and his wide range of talents will be a huge asset to ORAVI.

ORAVI is comprised of 400+ companies in aviation and related businesses.  These include aircraft and part manufacturers, flying services, heavy lift helicopter services, unmanned aerial vehicle systems, airports, maintenance and suppliers to these industries.

The Columbia Aviation Association, where Scott is speaking on September 1,  is located at the Aurora State, Oregon Airport (UAO).  CAA was founded in 1949 as a private organization devoted to flying.  After being located at the Portland International Airport (PDX) for forty five years, members completed the beautiful new Aurora clubhouse in 1996.  Membership is by invitation only and requirements include possession of a private pilots certificate.  Most of the club’s 260 members have advanced ratings and are aircraft owners who fly on a regular basis for business and pleasure.

Pilot mental fitness is a critical aspect of aviation safety.  As Jet Blue Founder and former CEO David Neeleman recently suggested, “nobody ever thought about having to protect the passengers from the pilots”.  In the wake of the tragic circumstances surrounding Germanwings 9525 and MH370, the FAA chartered the Pilot Mental Fitness Aviation Rulemaking Committee, which released its report in November, 2015.  But mental health issues are complex, and no system of detection, voluntary, or outside reporting is perfect.  Scott will discuss the circumstances in Germanwings 9525 and other notable incidents, which have spiked in the last two decades.  Scott will discuss the findings and recommendations in the FAA ARC final report.  He will also explore the issues surrounding the current system of pilot mental health from the perspective of the flying public, the airlines, the regulators, and pilots.

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

Scott Brooksby wrote the following article, which was published in the American Bar Association’s Mass Torts Summer newsletter:

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

By Scott Brooksby – June 21, 2016

Foreign aviation disasters very often result in litigation in the United States. Many cases arising from foreign crashes brought by foreign plaintiffs against foreign defendants are dismissed based on forum non conveniens. However, a recent case decided under the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), 28 U.S.C. § 1369, illustrates the exacting standard for establishing general personal jurisdiction in foreign aviation disasters when plaintiffs seek to litigate in the United States, even when national service of process is permitted. Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015).

The Montreal Convention
Before considering the MMTJA in the context of an aviation disaster, it is important to recall that claims against air carriers, in contrast to claims against manufacturers, are governed by the Montreal Convention. The Montreal Convention of 1999 was ratified by the United States in September 2003 and went into effect in November 2003. It limits the forums in which foreign plaintiffs can file lawsuits against air carriers. The Montreal Convention is a successor to the Warsaw Convention of 1929 and, in addition to important new provisions, consolidates and clarifies prior provisions of the Warsaw Convention. Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on 28 May 1999, ICAO Doc. No. 4698 [hereinafter Montreal Convention].

The Montreal Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.” Montreal Convention, supra, art. 1 § 1. When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier. In El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999), the Court held that personal injury claims arising from aircraft operations within the scope of the convention are not allowed unless permitted under the terms of the convention. Id. at 176. In light of the holding in Tseng, other federal courts have held that the damages available under the convention are the sole cause of action. See, e.g., Ugaz v. Am. Airlines, 576 F. Supp. 2d 1354 (S.D. Fla. 2008).

For purposes of forum non conveniens motions, Article 33 of the Montreal Convention provides that there are five forums in which a plaintiff may bring claims against a carrier:

1. the domicile of the carrier;

2. the principal place of business of the carrier;

3. the place where the airline ticket was purchased;

4. the place of destination; and,

5. in personal injury cases, the principal and permanent place of residence of the plaintiff

The so-called fifth jurisdiction, the plaintiff’s principal and permanent place of residence, was added by the Montreal Convention and expanded on the Warsaw Convention provisions governing proper forums. Under the Montreal Convention, the principal and permanent residence is the “one fixed and permanent abode of the passenger at the time of the accident.” Montreal Convention, supra, art. 33 § 3(b).

Under the fifth jurisdiction principle, a plaintiff may bring the lawsuit for personal injuries in the forum in which he or she has his or her principal and permanent place of residence, and to or from which the carrier operates flights, and in which the carrier leases or owns commercial premises by itself or by another carrier with which it has a commercial agreement. A “commercial agreement” means an agreement made between carriers and related to joint service of passengers by air. Montreal Convention, supra, art. 33 § 3(a).

The MMTJA and Foreign Aviation Disasters
Although the Warsaw and Montreal Conventions addressed many aspect of air crash litigation, they did not specifically address U.S. federal court handling of mass disaster litigation, and they addressed only aviation-related cases against carriers. In 2002, the MMTJA was enacted to create greater efficiency in disaster cases in the federal system. The MMTJA grants district courts original jurisdiction where minimal jurisdictional requirements are met and where the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location[.]” 28 U.S.C. § 1369(a). The permissible lawsuits include both wrongful death and personal injury.

The first case arising under the MMTJA was the Station nightclub fire in West Warwick, Rhode Island, on November 20, 2003, in which 100 people were killed and 230 injured. Lawsuits were filed throughout New England in state and federal courts. Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004).

The MMTJA widely broadens federal jurisdiction in mass disaster cases and provides that the district courts will have original jurisdiction wher

(1) a defendant resides in a State and a substantial part of the accident took place in another State or other location, regardless of whether that defendant is also a resident of the State where a substantial part of the accident took place;

(2) any two defendants reside in different States, regardless of whether such defendants are also residents of the same State or States; or

(3) substantial parts of the accident took place in different States.

28 U.S.C. § 1369(a)(1)–(3).

Under the MMTJA, “minimal diversity” exists between adverse parties if any party is a citizen of a state and any adverse party is a citizen of another state or a foreign state. Corporations are deemed to be a citizen of any state in which it is incorporated, or has its principal place of business, and is deemed to be a resident of any state in which it is licensed to do business or is doing business. 28 U.S.C. § 1369(c)(1)–(2). The district courts must abstain from hearing any action in which the “substantial majority” of all plaintiffs are citizens of a single state in which the primary defendants are also citizens, and from hearing any claims that are governed primarily by state law. 28 U.S.C. § 1369 (b)(1)–(2). Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U.S.C. § 1332.

Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015), arose from the December 28, 2014, crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore. During flight, a rudder system malfunctioned. Subsequent miscommunication between the pilots and a crew member’s removal of a circuit breaker disengaged the autopilot and caused the plane to roll and enter a prolonged stall before crashing into the Java Sea. All 155 passengers and 7 crewmembers were killed. The investigation was handled by the Indonesia National Transportation Safety Committee, which released its final report on December 1, 2015. Komite Nasional Keselamatan Transportasi, Republic of Indonesia, Final Aircraft Accident Investigative Report (2015).

The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus. Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause. The plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’s extensive contacts with the United States as a whole.

The court reasoned that because the case was brought under the MMTJA, Federal Rule of Civil Procedure 4(k)(l)(C) and the MMTJA enabled the court to consider Airbus’s contacts with the United States as a whole, and not just with the state of Illinois. However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the court’s exercise of personal jurisdiction. Siswanto, 2015 WL 9489952, at *1.

Early in its jurisdictional analysis, the court noted that despite the geographic expansion of service and, in turn, the initial scope of personal jurisdiction, Rule 4(k)(1)(C) and section 1697 do not override the controlling constitutional limitations of the court’s exercise of general or specific personal jurisdiction imposed by the Fifth Amendment’s Due Process Clause. Siswanto, 2015 WL 9489952, at *2 (citing KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730–31 (7th Cir. 2013)). The court noted that the traditional “minimum contacts” test from International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945),still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process. Siswanto, 2015 WL 9489952, at *2.

Judge Blakey reasoned that when defendants are domiciled in the United States, the due process analysis under a nationwide service of process is straightforward. Because domestic companies and individuals “almost by definition” have minimum contacts with the United States, there may be general personal jurisdiction in any federal court in the country.Id. at *3.

The court noted that because Airbus is not a domestic company, the plaintiffs must show its contacts with the United States are sufficient to support either general or specific jurisdiction, and that general personal jurisdiction required “continuous and systematic general business contacts” such that Airbus is “essentially at home in the forum,” here, the United States as a whole, and not just the state of Illinois. Id. at *4 (citing Abelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012)). The court concluded that, under Abelesz, the court’s inquiry is not whether Airbus’s contacts with the forum are simply “extensive in the aggregate.” Id. at *3 (internal citations omitted).

There was no dispute that Airbus was incorporated and had its principal place of business in France. For at least the five previous years, Airbus had not maintained any offices or employees or owned or rented property in the United States. All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the United States undertook this work. The A320-216 had been issued a type certificate by the European Safety Agency but not by the Federal Aviation Administration (FAA). The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the United States, and the aircraft had never been flown in the United States. Id. at *2.

The plaintiffs argued that four categories of contacts between Airbus and the United States warranted the court’s exercise of general personal jurisdiction. First, the plaintiffs pointed to aircraft sales in the United States, which amounted to 811 aircraft, or 6.73 percent of Airbus’s sales. The court rejected this argument, ruling that none of the sales gave rise to the crash, and noted that the Supreme Court has instructed that imputing general personal jurisdiction from a defendant’s sales in the forum, even if sizable, would stretch general personal jurisdiction beyond its reach. Id. at *4 (citing Daimler AG v. Bauman, 134 S. Ct. 746, 760–62 (2014)).

Second, the plaintiffs argued that Airbus spends 42 percent of its aircraft-related procurement in the United States. The court also rejected this argument, stating that mere purchases, “even if occurring at regular intervals,” do not establish general personal jurisdiction when the underlying cause of action is not related to those purchases. Id. (citingHelicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984)); accordDaimler, 134 S. Ct. at 757.

Third, the plaintiffs argued that contacts from Airbus’s “separately incorporated” subsidiaries should be imputed to Airbus because they maintained a physical presence in the United States. The court rejected this argument on the basis that the general rule is that jurisdiction contacts of a subsidiary are not imputed to the parent. Id. (citing Abelesz, 692 F.3d at 658–59 (internal citations omitted)).

Fourth, the plaintiffs cited a 2006 article showing that the FAA certified another aircraft model, the Airbus A380. The court also rejected this argument, finding that the isolated fact of the certification of another model aircraft had no special significance as far as personal jurisdiction is concerned. Id.

Having rejected the plaintiffs’ jurisdictional arguments, Judge Blakey turned to the plaintiffs’ alternative argument that venue in the Northern District of Illinois was proper because at least one other defendant, Motorola, resided in that district. The court rejected that argument, noting that establishing venue does not establish jurisdiction and that there was no legal basis for the court to conflate jurisdiction and venue. Id. at *6.

Thus, on December 30, 2015, the court granted Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. In doing so, the court rejected the plaintiffs’ argument that dismissing Airbus would set the dangerous precedent of effectively exempting Airbus from the MMTJA. The court reasoned that “[a]lthough Airbus’ contacts with the United States may have been extensive, plaintiffs have fallen far short of showing the de factorelocation that the Supreme Court has required for a foreign corporate defendant to satisfy general personal jurisdiction.” Id. at *5 (emphasis in original).

Conclusion
The significance of Siswanto and the MMTJA is that jurisdiction is analyzed on a nationwide basis, and not merely on a state-by-state basis or by looking at any particular state. Airbus’s contacts with Illinois or any other individual state are not discussed. Therefore, under the MMTJA, the court could have found that if Airbus was subject to jurisdiction in any state, jurisdiction would have been proper in Illinois as the state where the MMTJA case against Airbus was pending. Even under the statute’s broad jurisdictional sweep, encompassing the United States as a whole, a major non-American aircraft manufacturer was not in Siswanto, and may well not be in future cases, subject to personal jurisdiction anywhere in the country

Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation

Hot topics in aviation litigation include birds, pets, lasers, and stowaways.  Each pose the danger of catastrophic mass torts.

Bird and animal strikes pose an increasing danger to commercial, military and general aviation.  Strikes result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.  Bird strikes are the second leading cause of death in aviation accidents.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905.  The greatest loss of life directly linked to a bird strike occurred on October 4, 1960, when a Lockheed L-188 flying as Eastern Air Lines Flight 375, flew through a flock of common starlings during take-off from Logan Airport, damaging all four engines. The plane crashed into Boston harbor killing 62 of the 72 passengers on board. http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/.  (Last visited 4/19/16).

Other major bird strike incidents include:

  • United Airlines Flight 297. On November 23, 1962, a Vickers Viscount 745D crashed near Columbia, Maryland after striking a flock of whistling swans while cruising at 6,000 feet.  The impact caused the horizontal stabilizer to separate, leading to loss of control.  All seventeen people on board were killed.
  • Ethiopian Airlines Flight 604. On September 15, 1988, a Boeing 737-200 ingested a flock of speckled pigeons as it took off from Bahir Dar, Ethiopia.  Both engines failed immediately, and the ensuing belly landing caused a fire that killed 35 passengers.
  • Leadair UniJet. On January 20, 1995, a Dassault Falcon 20 sucked lapwings into the No. 1 engine on takeoff, which caused an uncontrolled engine failure and a fire in the airplane’s fuselage; all 10 people on board were killed.
  • S. Air Force Boeing E-3. On September 22, 1995 the AWACS aircraft crashed shortly after takeoff from Elmendorf AFB. The aircraft lost power in both port side engines after the engines ingested several Canada geese during takeoff.  The geese had been disturbed during the takeoff of a Hercules transport moments earlier.  After reaching 250 feet, the plane crashed about two miles from the runway, killing all 24 crew members on board.
  • Ryanair Flight 4102. On November 10, 2008 a Boeing 737-8AS on final approach to Rome Ciampino Airport sustained 90 bird strikes, all from starlings.  After one engine was damaged, and the other engine ingested birds, the crew managed an emergency landing.  There were 10 injuries.  The plane, which was only eight months old, was a total loss.
  • US Airways Flight 1549. On January 15, 2009 an Airbus A320-214 lost power in both engines after multiple strikes with Canada geese shortly after takeoff from LaGuardia Airport.  About three minutes after the loss of all power, the flight crew conducted a water landing on the Hudson River.  150 passengers and five crew members sustained a total of 95 minor and five serious injuries.
  • PHI Inc., Charter. On January 4, 2009, a Sikorsky S-76C crashed into marshland about seven minutes after takeoff near Amelie, Louisiana, killing two pilots and six of the seven passengers. The helicopter’s impact with a red-tailed hawk jarred the fire suppression handles loose, which pushed the engine controls to idle, depriving the engines of fuel.

Boeing has compiled extensive data on bird strikes:

  • More than 219 people have been killed as a result of bird strikes since 1988.
  • Between 1990 and 2009, bird and mammal strikes cost the U.S. civil aviation complex $650 million per year.
  • The U.S. Air Force sustains approximately $333 million dollars in damage per year due to bird strikes.
  • About 5,000 bird strikes were reported by the Air Force in 2012.
  • About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.
  • The FAA has identified 482 species of birds involved in strikes from 1990-2012.
  • Between 2001 and 2011, 4066 engines were damaged in 3,935 bird strikes. This resulted in a wide range of outcomes including aborted takeoffs, engine shutdowns, and crashes.

http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/.  (Last visited 4/19/16).  http://news.nationalgeographic.com/news/2013/10/131108-aircraft-bird-strikes-faa-radar.  (Last visited 4/19/16).

Factors Contributing to the Rise in Bird Strikes

  • The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.
  • A twelve pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.
  • Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported.  The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.
  • Finally, the population of European starlings is now the second most prevalent bird species in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls. http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4.  (Last visited 4/19/16).

Population Management Techniques

In January, 2009, U.S. Airways Flight 1549 landed on the Hudson River after both engines ingested Canada geese.  New York City Mayor Michael Bloomberg declared war on geese.  Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009) http://www.theguardian.com/environment/2009/jun/12/new-york-geese-cull.  (Last visited 4/19/16). A mayoral steering committee gave approval to the USDA to cull geese in a 450 mile area encompassing JFK, LaGuardia and Newark airports.  Principal methods of population control include:

  • Each summer teams of USDA goose catchers capture geese which, in the molting condition cannot fly, including offspring which are then take to slaughterhouses and killed. Between 2009 and 2010, 2911 geese were killed.
  • The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.
  • Discouraging nesting and grazing.
  • Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.
  • Firing pyrotechnics and propane cannons.
  • Use of chemical repellants.
  • Population exclusion.
  • Use of visual repellants.
  • Tactile repellants.

http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/.  (Last visited 4/19/16).

Potential Liability for Airport Operators

Airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues.  The U.S. Code of Federal Regulations requires Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. Section 139.337 to conduct formal Wildlife Hazard Assessments.  The certificated airports must develop Wildlife Hazard Management Plans as part of the certification standards.  Airports are required to employ professional biologists trained in wildlife hazard management. 14 C.F.R. Section 139.337 and FAA Advisory Circular 150/5200-36.  Failure to comply with the regulations can give rise to liability for airport operators. https://www.aphis.usda.gov/wildlife_damage/airline_safety/pdfs/Summary%20Report%20WS%20Airport%20Wildlife%20Hazards%20Program%20FY%2008.pdf.  (Comprehensive overview of applicable regulations and methods, last visited 4/19/16).

The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of wildlife strikes with aircraft.  Wildlife challenges are by no means limited to birds.  Airports across the country are struggling with wildlife management.  http://www.post-gazette.com/sports/hunting-fishing/2016/01/17/Keeping-wildlife-off-tarmac-is-big-job-at-Pittsburgh-International-Airport/stories/201601170140.  (Last visited 4/19/16).

In addition to reports of aircraft strikes involving nearly 500 bird species, other wildlife strikes reported during the last decade involved nearly 100 terrestrial animals including mongoose, bears, badgers, moose, pigs, burros, horses, and even camels, in addition to 137 reptile strikes.

For additional background information, see “Wildlife Strikes to Civil Aircraft in the United States, 1990-2001”, United States Department of Agriculture, Federal Aviation Administration, United States Department of Agriculture, July, 2012.  Report published for the Federal Aviation Administration Office of Airport Safety and Standards.    https://www.faa.gov/airports/airport_safety/wildlife/resources/media/bash90-11.pdf.  (Last visited 4/19/16).  http://www.fws.gov/migratorybirds/pdf/bird-enthusiasts/birdstrikes.pdf.  (Alternate link, last visited 4/19/16).

Regulations for Aircraft and Engine Manufacturers

In response to the Eastern Airlines crash in Boston in 1960 mentioned above, The FAA issued Advisory Circular 33-1 “Turbine Engine Foreign Object Ingestion and Rotor Blade Containment Type Certification Procedures,” which provided guidance for compliance with FAA regulations §3313 and §3319 requiring that engine design minimize unsafe condition.  For additional information on the scope of required fan and engine construction, see Christopher Demers, “Large Air Transport Jet Engine Design Considerations for Large and for Flocking Bird Encounters”, DigitalCommons@University of Nebraska-Lincoln (2009). http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=birdstrike2009.  (Last visited 4/19/16).

Aircraft Wheel Well Stowaways and Potential Mass Torts

In recent years, wheel well stowaways have received increasing media attention and public interest.  Statistics on the manner of death and the factors that keep stowaways alive are not precise, and there are differing standards for investigation internationally.

Many, if not most, of these incidents arise from the unfortunate political, social, economic or family circumstance of the stowaway.  However, assuming the physiological obstacles of hypothermia and hypoxia are overcome, one major question remains: What legal implications are raised if a stowaway with destructive intent caused a major tragedy?

Usually a stowaway jumps into an aircraft by hanging on to the airliner’s landing gear as the plane takes off, or climbs into the gear compartment before takeoff.  The force of the wind can easily make a stowaway fall to his or her death.  Alternatively, many stowaways are crushed in the confined space of the compartment when the gear is retracted.  Others appear to have died from the heat produced by the engines of the aircraft, or fallen while unconscious when the gear is extended.  The overwhelming majority of stowaways are young males.

According to the FAA, the first recorded case of an aircraft stowaway occurred on June 13, 1929. The Bernard monoplane Oiseau Canari, piloted by Frenchmen Assollant Lefevre, had trouble taking off in spite of its powerful Hispano Suiza engine. The crew later discovered the cause of the problem: a stowaway on board. Despite the overload, the plane landed in Spain after 22 hours of flight. http://www.faa.gov/about/office_org/headquarters_offices/ang/offices/tc/about/campus/faa_host/rdm/media/pdf/fy2011rdannualreview.pdf.  (Last visited 4/19/16).

Physiological threats for a stowaway are minimal at altitudes up to 8,000 feet, but at higher altitudes reduced atmospheric pressure and partial pressure of oxygen may have deleterious effects.  At all cruising altitudes, the partial pressure of oxygen in a wheel well cannot sustain consciousness.  Additionally, at altitudes of about 20,000 feet, stowaways may develop decompression sickness.  Id.

All of the scientific research suggests that, after takeoff, a stowaway faces two life-threatening conditions during flight: hypoxia and hypothermia.  In 1993, the fatality of a 19-year old who stowed away in the wheel-well of a plane bound from Colombia to JFK was one of the 13 wheel-well stowaway flights documented in a report by the U.S. FAA, Civil Aeromedical Institute (CAMI), and Flight Safety Foundation as having frozen to death. (FSF). https://www.faa.gov/data_research/research/med_humanfacs/oamtechreports/1990s/media/AM96-25.pdfhttp://flightsafety.org/hf/hf_may-jun97.pdf .  (Last visited 4/19/16).

Some experts suggest that survival rates in young people may be higher because their brains more readily approach to a “virtual hibernative state,” where their bodies become temporarily more adaptable to trauma.  http://time.com/70441/how-the-teen-stowaway-survived-his-trans-pacific-flight-in-a-wheel-well/.  (Last visited 4/19/16).

According to the FAA, from 1947-2014 there have been 94 flights involving 105 people who stowed away worldwide.  Of those 105 people, 80 died and twenty-five survived.  The twenty-five people who survived represent a 23.8 percent survival rate.

In 2014 a sixteen-year-old California boy jumped a fence at San Jose International Airport and squeezed into the wheel-well of a flight bound for Maui, where he emerged 5 hours later, in good health.  Experts surmised that the teen’s youth could be an advantage, as the brains of young people adapt more easily to hypothermia and hypoxia, for reasons that are not completely understood.  http://khon2.com/2014/04/20/fbi-investigating-stowaway-of-hawaiian-airlines-flight/.  (Last visited 4/19/16).

Similarly, in June, 2015, a 21-year old Indonesian man hid in the wheel well of a Garuda Indonesia flight from Sumatra to Jakarta. http://www.huffingtonpost.com/2015/04/08/stowaway-survives-flight-indonesia_n_7023396.html(Last visited 4/19/16).

Possible Liability

There may be a number of consequences of security breaches by aircraft wheel well stowaways and their on-board actions, despite the present physiological obstacles.  Among these include:

  • In the event of a crash, mass tort litigation by innocent passengers against airlines, airports, governments and contractors arising from security breaches.
  • Widespread concern about security at public, airline, security provider, airport, and government levels which leads to additional legislation, regulation, or policy.
  • Other terrorist acts such as ransom demands or extortion of other conditions by extremists determined to cause a catastrophe through a stowaway with destructive or disruptive capability.
  • Government levied fines for airlines, airports, private security companies, local police, and federal agents based on security breaches.
  • Increased security measures imposed on airport, airline, local, state and federal authorities.
  • Lawsuits by agencies, airlines or security agents against the indigent stowaways are unlikely, although deportation is possible.

Wheel well stowaway events appear to be on the rise, and each event is highly publicized.  However, these events have not resulted in widespread litigation.  The only litigated case brought by the family of a stowaway involved sixteen-year-old Delvonte Tisdale.  Tisdale ran away from home on November 14th, 2010.  A day later his body was found mangled in a Boston suburb.  Authorities determined that Tisdale likely sneaked onto the tarmac of Charlotte-Douglas International Airport and climbed into the wheel well of US Airways Flight 1176, bound for Boston.

Tisdale’s family sued US Airways, The airport, and the City of Charlotte alleging that the defendants negligently failed to ensure people could not access restricted areas.  Among the failure to warn claims was an allegation that the defendants failed to warn of the dangers of entering an aircraft as a passenger through the wheel well.

http://www.greensboro.com/news/local_news/family-of-teen-stowaway-who-fell-from-plane-s-wheel/article_3e969954-8528-5211-99c8-88cc77529794.html.  (Last visited 4/19/16).

The judge ultimately disagreed with Tisdale’s family and dismissed the case.  Siding with Charlotte City Attorney Robert Hagemann, the judge ruled in July, 2013 that Tisdale was negligent in his actions and that the city is not responsible for people who breach security.  http://boston.cbslocal.com/2013/03/07/judge-dismisses-suit-filed-by-family-of-airplane-stowaway-delvonte-tisdale/.  (Last visited 4/19/16).

The breach of security in the Tisdale case raised questions about airport security.  If a 16-year-old, who had never flown before could evade airport security measures, then why not a terrorist?  With the proliferation of wheel well stowaways, it is likely only a matter of time until a tragic mass tort occurs.

Aircraft Laser Strikes

Reports of aircraft targeting with handheld ground lasers have been rising sharply.  In 2006, there were 384 reported incidents.  By 2014, there were 3,894 reported incidents.  In 2015, there were 7,702 reported incidents.  The FAA has recorded approximately 22 aircraft laser strikes per day in 2016.  https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=15774  (Last visited 4/19/16).  https://www.faa.gov/about/initiatives/lasers/laws/.  (Last visited 4/19/16).  https://www.justice.gov/usao-edca/pr/bakersfield-man-sentenced-striking-sheriff-s-helicopter-laser   (Last visited 4/19/16).  https://www.justice.gov/usao-edca/pr/bakersfield-resident-sentenced-pointing-laser-kern-county-sheriff-helicopter.  (Last visited 4/19/16).

In a widely publicized recent incident, a Virgin Atlantic flight originating at Heathrow bound for New York with 252 passengers on board was forced to turn back after a flight crew “medical issue” was caused by a laser strike shortly after takeoff.  http://.bbc.com/news/uk-35575861.  (Last visited 4/19/16).

Exposure to laser illumination may cause hazardous effects such as pain, watery eyes, headaches, flash-blindness, distraction or disorientation, loss of depth perception, and aborted takeoffs or landings, in addition to danger during lower level flight.

In the United States, an area with high numbers of laser strikes is the 34 counties encompassed within the United States Judicial District for the Eastern District of California, a judicial district which has been vigorously prosecuting laser strike offenders and securing a large number of convictions resulting in prison sentences and fines. (Albuquerque, Chicago, Cleveland, Houston, Los Angeles, New York City, Philadelphia, Phoenix, Sacramento, San Antonio, and San Juan all have high incidence of laser strikes.)  As recently as March 7, 2016, that office secured a guilty plea from a thirty-five year-old man with a powerful green laser, about the size of a flashlight in his pocket.  The man pleaded guilty to multiple strikes on a California State Highway Patrol airplane.  https://www.justice.gov/usao-edca/pr/clovis-man-pleads-guilty-laser-strikes-chp-plane (Last visited 4/19/16).

The increase in reports of ground based lasers targeting flying aircraft may be due to a number of factors, including the increased availability of inexpensive laser devices on the internet, higher power lasers which can strike aircraft at higher altitudes, and increased reporting by flight crews.  Regulatory power for laser light products is delegated to the FDA, and its regulations are found at 21 C.F.R. § 1010.

While some jurisdictions have made interdiction efforts using helicopters and other improved tracking methods, catching laser offenders is difficult.  The devices are small, and when extinguished can be easily concealed and the location of the user can be in sparsely populated areas.  To respond to the increasing attacks, the FAA launched the Laser Safety Initiative, which provides education on laser hazards and events, news, law and civil penalties, and encourages reporting.

The latest reports indicate that aircraft illuminations by handheld lasers involve green lasers rather than red.  This is significant because green lasers are 35 times brighter than red, and the wavelength of green lasers is close to the eye’s peak sensitivity when they are dark-adapted.  FAA flight simulation studies have shown that the adverse visual effects from laser exposure are especially debilitating when the eyes are adapted to the low-light level of a cockpit at night. http://www.faa.gov/pilots/safety/pilotsafetybrochures/media/laser_hazards_web.pdf.  (Last visited 4/19/16).

Restricted airspace surrounding commercial airports, in particular, can provide federal, state and/or local criminal penalties for violation with a laser, even if the operator is not operating the laser within the space, but merely causes the beam to intersect the controlled airspace to target an aircraft.  In the United States, laser airspace guidelines can be found in FAA Order JO 7400.2 (Revision “G” as of April 2008).  Chapter 29 of the Order provides a comprehensive overview of the FAA’s laser guidelines.

In 2011, the FAA announced plans to impose civil penalties against people, including the parents of juveniles, who point a laser into the cockpit of an aircraft.  http://www.faa.gov/news/press_releases/news_story.cfm?newsId=12765.  (Last visited 4/19/16).  The maximum administrative penalty is a fine of $11,000.

The FAA released a legal interpretation which concluded that directing a laser bean into an aircraft cockpit could interfere with a flight crew performing its duties while operating an aircraft, a violation of FAA regulations.  http://www.faa.gov/news/media/Laser%20Memorandum%20Final%20060111.pdf.  (Last visited 4/19/16).  The FAA conducted an analysis of 14 C.F.R. § 91.11 which provides that, “[n]o person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.”  However, the FAA standard for liability is higher than the standard for criminal liability under 18 U.S.C. §§ 32 and 39A.

Federal regulations prohibiting interference with a crewmember in the performance of their duties had initially been adopted in response to hijackings.  However, the FAA legal interpretation concluded that nothing in the regulation specified that the person interfering must be on the airplane.  Previously, the FAA had taken enforcement action only against passengers on-board the aircraft that interfere with crewmembers.  The maximum civil penalty is $11,000.  By June, 2012, the FAA had initiated 28 enforcement actions.  http://www.faa.gov/news/press_releases/news_story.cfm?newsId=13555.  (Last visited 4/19/16).

On February 14, 2012, President Obama signed Public Law 112-95.  The FAA Modernization and Reform Act of 2012, Section 311 amended Title 18 of the United States Code (U.S.C) Chapter 2 § 39, by adding § 39A, which makes it a federal crime to aim a laser pointer at an aircraft.  http://www.faa.gov/about/initiatives/lasers/laws/.  (Last visited 4/19/16).  Prior to 2012, federal prosecutions of laser illuminations of aircraft were initiated pursuant to 18 U.S.C. § 32(a)(5), which prohibits interference with the safe operation of an aircraft.  Aiming a laser at an aircraft is also prohibited by many state laws.

Between 2005 and 2013, there were 17,725 reported laser strikes in the United States, resulting in 134 arrests.  This data suggests that even when limiting the calculation to reported incidents, there is only a 0.75 percent chance of getting caught; a percentage that would decrease if unreported incidents were also considered.  There were 80 convictions among the 134 arrests. One reason for the conviction rate of 60 percent is that some who were arrested were minors who were never formally charged.  http://arstechnica.com/tech-policy/2014/05/blinding-light-the-us-crackdown-on-not-so-harmless-laser-strikes/3/.  (Last visited 4/19/16).

One high-profile case involved Sergio Rodriguez, who received a 14-year prison sentence after he was convicted of lasing police and medical helicopters in August, 2012.  Karen Escobar, the Assistant United States Attorney for the Eastern District of California who prosecuted the Escobar case, has pursued more cases against laser perpetrators than any other federal prosecutor.  Escobar was quoted as saying:

“At sentencing, [Rodriguez] did not accept responsibility for his actions; he blamed his 2- and 3- year-old children. I believe the evidence showed the laser was a dangerous weapon, and there was intention, supporting a guideline sentence of 168 months. I would not call it harsh. I would say it is a penalty that fits the crime, but I believe that it will have a deterrent effect, and I hope it will.”  Id.

The Ninth Circuit has since reversed Rodriguez’ conviction for violation of 18 U.S.C. § 32 and remanded for resentencing for the Section 39A violation.  The Ninth Circuit found that the evidence did not support proof of the willfulness requirement for a Section 32 violation, noting that Section 32 was intended to apply to the bin Ladens of the world, not knuckleheads like Rodriguez.  On remand, the district court imposed the maximum penalty of five years for the Section 32 violation.

Much of the current focus on laser strikes focuses on interdiction and criminal prosecution.  The potential for a laser beam disabling a flight crew, and resulting in a mass tort, creates civil liability questions which have yet to be resolved.

Animal Passengers: Is it a Pet, a Service Animal, an Emotional Support Animal, Or Something Else, and Does It Get a Ride?

Walking through any large airport in 2016, it is likely that departing and arriving passengers will see any number of animals and a wide variety of species, shapes, and sizes.  Dogs, cats, birds, rodents, reptiles, pigs and even miniature horses are all found in airports waiting to board.  The distinction between service animals, companion animals, emotional support animals, and pets may not always be clear.

Transport of service animals, including emotional support animals is governed by the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705 (1986), which incorporates provisions consistent with the Americans With Disabilities Act, 42 USC § 126 (1990).  In contrast to service animals, transport of pets is generally done for an additional fee, which can be significant.  Transportation of pets is generally governed by airline and airport policy, so long as policy is consistent with FAA, TSA, USDA and DOT rules and regulations.  This can lead to arguably conflicting policies and practices by airports and carriers.

Animals and the Air Carrier Access Act

The ACAA prohibits discrimination by U.S. and foreign air carriers on the basis of physical or mental disability.  In 1990, the U.S. Department of Transportation promulgated the official regulations implementing the ACAA.  Those rules mandate nondiscrimination on the basis of disability in air travel.  14 CFR Part 382.

The implementation regulations in Part 832, and guidance publications prepared by DOT provide guidance for airline employees and people with disabilities in understanding and applying the ACAA and the provisions of Part 382 with respect to service animals in determining:

(1) whether an animal is a service animal and its user a qualified individual with a disability;

(2) how to accommodate a qualified person with a disability with a service animal in the aircraft cabin; and

(3) when a service animal legally can be refused carriage in the cabin.

The 1996 DOT ACAA guidance manual defines a service animal as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.” “Guidance Concerning Service Animals in Air Transportation,” (61 FR 56420-56422, (November 1, 1996)).

In 2003, DOT clarified the previous definition of service animal by making it clear that animals that assist persons with disabilities by providing emotional or psychiatric support qualify as service animals.  The definition of service animal was modified to clarify that airlines had authority to require that passengers provide documentation of the individual’s disability and the medical necessity of the passenger’s travel with the animal in cases involving emotional support animals and psychiatric service animals

The DOT has continued to update the guidance materials.  Nondiscrimination on the Basis of Disability in Air Travel, 73 FR 27614, May 13, 2008 as modified by: Correction Notice of 74 FR 11469, March 18, 2009, Correction Notice of 75 FR 44885, July 30, 20010.  http://airconsumer.ost.dot.gov/rules/Part%20382-2008.pdf.  (Last visited 4/19/16).

Also of note in the DOT guidance materials:

  • Pets are not service animals.
  • Some unusual service animals, including snakes, other reptiles, ferrets, rodents and spiders pose unavoidable safety and/or public health concerns and airlines are not required to transport them in the cabin.
  • Other unusual service animals such as miniature horses, pigs and donkeys should be evaluated on a case by case basis.
  • When Part 382 was first promulgated, most service animals were guide or hearing dogs. Since then, a wider variety of animal (g., cats, monkeys, etc.) have been individually trained to assist people with disabilities. Service animals also perform a wider variety of functions than ever before (e.g., alerting a person with epilepsy of imminent seizure onset, pulling a wheelchair, assisting persons with mobility impairments with balance) which can make it difficult for airline employees to distinguish service animals from pets, especially when a passenger does not appear to be disabled, or the animal has no obvious indicators that it is a service animal.
  • People with disabilities use many different terms to identify animals that can meet the legal definition of “service animal.” These range from umbrella terms such as “assistance animal” to specific labels such as “hearing,” “signal,” “seizure alert,” “psychiatric service,” “emotional support” animal, etc. that describe how the animal assists a person with a disability.
  • In a nutshell, the main requirements of Part 382 regarding service animals are:
    • Carriers shall permit dogs and other service animals used by persons with disabilities to accompany the persons on a flight. § 382.117(a).
    • Carriers shall accept as evidence that an animal is a service animal identifiers such as identification cards, other written documentation, presence of harnesses, tags or the credible verbal assurances of a qualified individual with a disability using the animal.
    • Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation or to comply with FAA regulations.
  • If a service animal cannot be accommodated at the seat location of the qualified individual with a disability whom the animal is accompanying, the carrier shall offer the passenger the opportunity to move with the animal to a seat location in the same class of service, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel in the cargo hold § 382.117(c).
  • Carriers shall not impose charges for providing facilities, equipment, or services that are required by this Part to be provided to qualified individuals with a disability § 382.31.

In one recent case, a Washington State trial court analyzed the requirements of the ACAA as applied to an injury to a passenger caused by a Rottweiler service dog.  Sullivan v. Alaska Air Group, Inc., et al., Spokane County Case No. 15-02-00227-3, February 29, 2016.  Defendant owner of the Rottweiler was initially seated in back of the plane, but moved to row one to accommodate the size of the dog.  Plaintiff was seated in row two.  On arrival in Spokane, the dog allegedly bit plaintiff’s hand as she disembarked.

Plaintiff contended the airline had a duty to protect her and that the animal posed a foreseeable risk.  The airline argued that the ACAA preempted, either through conflict or field preemption, the plaintiff’s claims.  In conducting a preemption analysis, the court noted that airline passenger safety in regards to service animal is pervasively regulated by the ACAA sufficient to find that federal law expressly preempts and state standards of care.

The court granted the airline’s motion for summary judgement based on ACAA preemption.  The court noted that the requirements of 14 C.F.R. § 382.117 did not preclude the Rottweiler from riding on the plane.  The airline established, in satisfaction of the statutory requirements that the animal was, in fact, a service animal and they also determined that the animal did not present either a direct threat to the health and safety of others or a significant threat to the disruption of airline service.  Evidence was presented that the dog flew on the carrier or its partners twelve times previously without incident. Finally, there were harness markings or other credible assurances provided to establish that the dog was a service animal.

Animals present airlines and airports with a minefield of compliance, liability, public relations and customer service issues which range from fundamental flight safety, to combating abuses of the ACAA in order to obtain free plane tickets for pets.  In many cases, it may come down to a judgment call about whether the animal can safely be accommodated, or whether it will disrupt, or even endanger the flight.  Airlines also face very high fines for failing to accommodate legitimate service animal accommodation requests.

In January, 2016, a passenger brought a live turkey onto a Delta Airlines flight, claiming the animal was needed for emotional support.  Delta noted that the passenger had complied with the rigorous requirements of the ACAA which included providing documentation from a mental health professional that the animal’s companionship was necessary for travel.

Delta’s spokesperson noted that any therapist can sign off on any kind of animal, however, snakes, spiders and farm poultry are not acceptable.  Animals allowed to board as service or emotional support animals under the ACAA are accommodated free of charge, and are not allowed to block emergency exits or occupy seats designed for passengers. https://www.washingtonpost.com/news/morning-mix/wp/2016/01/15/someone-just-used-a-federal-law-to-bring-a-live-turkey-on-a-delta-flight/.  (Last visited 4/19/16).  http://www.nydailynews.com/news/national/turkeys-sitting-planes-emotional-support-animals-article-1.2496248.  (Last visited 4/19/16).

Scott Brooksby featured as speaker and moderator regarding birds, pets, lasers, and other hot topics in aviation

On June 1, 2016, Scott Brooksby was featured as a speaker and moderator on a panel entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”, at the American Bar Association’s 22nd Annual National Institute on Aviation Litigation, at the University Club of New York in New York, New York.

Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts.  The topics discussed included the following issues:

• Bird strikes are the second-leading cause of death in aviation, with more than 400 deaths globally. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks.
• Flight crews are increasingly targets of inexpensive, and increasingly powerful hand-held green lasers. More than 7,000 laser strikes were reported to the FAA in 2015. This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.
• Pigs, snakes and turkeys are just some of the pets, or emotional support animals, that airlines are confronting. The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines.
• The number of wheel well stowaway incidents are rising which poses security risks for airports and airlines, and it is not inconceivable that the stowaway with destructive intent could cause a catastrophic mass tort.

Scott Brooksby featured as speaker on the Germanwings crash.

Scott Brooksby spoke on a panel in New York, NY at the  American Conference Institute’s 8th Annual Forum on Defending and Managing Aviation Claims and Litigation.  His panel was entitled “SPOTLIGHT ON FLIGHT CREW MENTAL HEALTH ISSUES Post-Germanwings: An In Depth Discussion of the Legal, Regulatory, Public Safety and Ethical Considerations”.   On June 27, 2016, Scott and other distinguished panelists spoke on the following topics:
• An in depth discussion of aeromedical
issues and developments following last year’s
Germanwings crash
• What procedures are currently in place
to identify mental health issues in pilots,
crew-members, air traffic controllers? —
Are they enough?
• Who should be in possession of a
crew-member’s mental health information?
• Who has what responsibilities to make reports
of other crew-members’ mental health info?
• Who regulates this?
• Assessing considerations of confidentiality
with considerations of public safety
• Under what circumstances can medical data
be shared and with whom?
• What strides is the FAA taking in response to
the Germanwings tragedy? (ARC and Amsis)
• Addressing current issues and challenges related to:
– Awareness and reporting of emotional
and mental health issues
– Methods used to evaluate pilot emotional
and mental health
– Barriers to reporting such issues
– Surveillance and oversight of designees and
aviation industry substance-abuse programs
• A discussion of the ethical challenges and
considerations, and how to best navigate them

Scott Brooksby featured as a speaker regarding Air France 447

Scott Brooksby was a featured speaker on a panel discussing District Litigation after Air France 447.   Scott was invited to speak at the 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts for the Bar Association of San Francisco.  The conference took place in San Francisco, California on May 27, 2016.

Scott and other distinguished panelists discussed the interesting substantive, procedural, and strategic considerations for airlines and other types of manufacturers seeking dismissal in forum non conveniens motions, and for passengers and other plaintiffs seeking to defeat FNC motions in multi-district litigation. Using examples from aviation-related MDLs, and specifically after the groundbreaking MDL involving Air France 447, the panel discussed key aspects of establishing personal jurisdiction over foreign corporate defendants. The panel discussed the complex issues associated with international treaties, choice-of-law, the meaning of an “unavailable forum” and challenging jurisdiction and venue considerations that arise when both U.S. and foreign individuals
are involved.

Moderator: Ann C. Taylor, Locke Lord LLP, Chicago, IL
Panelists: Scott Brooksby, Olson Brooksby, Portland, OR              Thad Dameris, Arnold & Porter, Houston, TX
Steve Koh, Perkins Coie LLP, Seattle, WA
Steve Marks, Podhurst Orseck, P.A., Miami, FL

Multi-District Aviation Disaster Litigation after Air France 447

Multi-District Aviation Litigation (MDL) after Air France 447

Air France 447 was operated as a scheduled passenger flight from Rio de Janeiro, Brazil to Paris, France, when it crashed on June 1, 2009.  About three and one-half hours into the flight, the plane entered a high-altitude aerodynamic stall, from which it never recovered, and crashed into the Atlantic, killing all 228 passengers, cabin crew and aircrew.  The Airbus A330-203 was Air France’s newest A330 at the time of the crash, and had undergone a major overhaul on April 16, 2009.  It was the second and deadliest crash of an Airbus A330, causing a fair amount of aviation litigation activity.

The crash was investigated by France’s Bureau d’Enquêtes et d’Analyses pour la Sécurité de l’Aviation Civile (BEA), which released its final report on June 5, 2012.  The report concluded that the aircraft’s pitot tubes were obstructed by ice crystals.  The icing of the pitot tubes created inconsistent airspeed readings which automatically disconnected the autopilot.  The crew reacted improperly, placing the aircraft into an overly aggressive angle of attack, causing it to climb at such a steep angle that air passing over the wings failed to provide lift.  The aircraft remained at varying degrees of excessive pitch, and remained stalled during its entire three minute and thirty second descent from 38,000 feet despite the fact that engines ran at full power and were not defective.  It crashed into the Atlantic Ocean killing everyone on board.

For general information, see Interim and Final reports on the accident on 1 June 2009 to the Airbus A330-203 registered F-GZCP operated by Air France flight AF 447 Rio de Janeiro-Paris.  Paris: Bureau d’Enquêtes et d’Analyses pour la Sécurité de l’Aviation Civile (BEA), July 2, 2009, and July 5, 2012.

Fact Issues Framing Forum, Removal, MDL, The Montreal Convention, MMTJA, and FNC Considerations

In the typical aviation mass disaster where FNC and other considerations arise, the airline will be a foreign carrier.  The accident will have occurred outside the United States or its airspace.  The crash may involve a U.S. or foreign-manufactured aircraft.  The passengers may be from the U.S. or they may be foreign citizens, but the majority of plaintiffs will be foreign.  Component part manufacturers may be numerous and may be foreign or domestic.

The litigation arising from the AF 447 crash, which would become the multidistrict litigation known as In re:  Air Crash Over the Mid-Atlantic on June 1, 2009, Multidistrict Litigation No.3:10-MD 02144, involved all of these situational considerations.

The aircraft was manufactured by the French Company Airbus S.A.S., which sourced components using numerous suppliers from Europe and the United States.  The plane was equipped with two General Electric CF6-80E1A3 engines manufactured in the United States.

Among the 216 passengers were 126 men, 82 women and eight children, including 1 infant.  There were twelve crew members on board.  Due to the thirteen hour length of the flight, there were three pilots on board taking staggered rest periods.  At the time the plane entered the stall, the pilot in command was on a rest period in a cabin behind the cockpit.  Of the twelve crew members, eleven were French and one was Brazilian.  There were passengers and crew representing thirty-three nationalities, including two Americans.  The vast majority were French, Brazilian and German.

In March, 2010 the first twenty-three wrongful death lawsuits were filed against Airbus, the French manufacturer of the pitot tubes and several U.S. component- part suppliers in the United States District Court for the Southern District of Florida.  The component part suppliers included Thales, the French manufacturer of the pitot tubes, as well as U.S.-based component part manufacturers including Intel, G.E., Rockwell, Motorola, Honeywell, du Pont and others.

Other wrongful death lawsuits were filed in U.S. District Courts in Texas, Illinois and California.

Wrongful death lawsuits filed by relatives of the Americans were filed in Houston.  Due to the provisions of the Montreal Convention, which prevented the foreign plaintiffs from suing Air France in the United States, these were the only two lawsuits directly naming Air France as a defendant.

General Principles of Forum Non Conveniens

Principles for application of the FNC doctrine of a supervening venue provision which provides for dismissal to an adequate alternative forum are well established in the United States.  In Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the Supreme Court made clear that defendant has the burden of proving both that an adequate alternative forum is available to plaintiffs and that the balance of private- and public-interest factors weigh in favor of litigation in the alternative foreign forum.

The Piper litigation arose from the crash of a Piper Aztec in the Scottish Highlands in July, 1975.  The crash killed the pilot and five passengers.  The twin-engine light utility plane was manufactured by Piper Aircraft in Pennsylvania, and fitted with Hartzell propellers manufactured in Ohio.  The plane was operated by a British sky taxi service.  The investigation by the British government after the crash found no evidence of any product defects.

Reyno, a legal secretary for the attorney filing lawsuits on behalf of the deceased passengers, was appointed administratrix of the estates.  After Reyno filed negligence and strict product liability lawsuits in a California state court, Piper removed based on diversity jurisdiction and obtained a 28 U.S.C. § 1404(a) transfer to the Middle District of Pennsylvania based on Piper’s substantial business in that district.  Hartzell moved to dismiss, or for transfer under 28 U.S.C. §1631 based on the conduct of business between Piper and Hartzell.

Both defendants then sought dismissal based on forum non conveniens.  The district court, relying on the test in Gulf Oil v Gilbert, 330 U.S. 501 (1947), granted the motions, but the Third Circuit reversed, holding that FNC dismissals are not proper when the law of the alternative forum is less favorable to the plaintiff.  The Supreme Court reversed, upholding the district court’s dismissal to Scotland based on FNC.

The Court noted that strict liability was not available as a cause of action in Scotland.

The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.

454 U.S. 235, 247.

Factors in the Supreme Court’s decision about the adequacy of an alternative forum include whether the forum has jurisdiction over all of the parties to the action, and, a different, or even lesser remedy is sufficient.

We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice.  In these cases, however, the remedies that would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly.

454 U.S. 235, 254-55.

After analysis of an adequate alternative forum, the analysis requires balancing of the parties’ private interests and the public interests of the forum.  Private interests generally include relative access to the proof, availability of compulsory process to obtain witness testimony, cost, and the typically numerous practical considerations to make trial easy, efficient and less costly.  Public interests include the resolution of local controversies on a local level, familiarity with governing law, and avoiding choice of law and conflicts.  454 U.S. 235, 242-43.

For FNC cases of general interest, see also Faat v. Honeywell Int’l, Inc., 2005 WL 2475701 (D.N.J. 2005) (example of foreign air disaster case with fact elements typical of case ripe for FNC dismissal); Blanco v Banco Indus. De Venezuela, S.A., 997 F.2d 974 (2d Cir. 1993) (forum adequate when procedures dissimilar); De Melo v. Lederle Labs., 801 F.2d 1058 (8th Cir. 1986) (alternative forum suitable if no punitive damages); Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764 (9th Cir. 1991) (FNC may still be suitable forum if no right to jury trial); Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) (factors in FNC); Piere-Louis v Newvac Corp., 584 F.3d 102 (11th Cir. 2009) (holding FNC is procedural); Chubb Ins. Co. of Europe v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023 (9th Cir. 2011) (discussing third-party actions in FNC cases); King v Cessna Aircraft Co., 2008 WL 276015 (S.D. Fla. 2008) (dismissal of foreign v U.S. passengers); Clerides v. Boeing Co., 534 F.3d 623 (7th Cir. 2008) (dismissal of foreign v U.S. passengers); Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983) (dismissal of foreign v U.S. passengers).

The Montreal Convention

The Montreal Convention of 1999 is critical to any consideration of FNC in an aviation disaster.  The Convention was ratified by the United States in September, 2003, and went into effect in November 2003.  The Convention is a successor to the Warsaw Convention of 1929 and, in addition to important new provisions, consolidates and clarifies prior provisions of The Warsaw Convention.  Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on 28 May 1999 (ICAO Doc No 4698).

The Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.”  Id. at Article 1 § 1.

When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier.  In El Al Israel Airlines v Tseng, 525 U.S. 155 (1999), the Court held that personal injury claims arising from aircraft operations within the scope of the Convention are not allowed unless permitted under the terms of the Convention.  In light of the holding in Tseng, federal courts have held that the damages available under the Convention are the sole cause of action.  See, e.g., Ugaz v. Am. Airlines, 576 F. Supp. 2d 1354 (S.D. Fla. 2008).

For purposes of FNC motions, Article 33 of the Convention provides that there are five forums in which a plaintiff may bring claims against a carrier:

  1. The domicile of the carrier;
  2. The principle place of business of the carrier;
  3. The place where the airline ticket was purchased;
  4. The place of destination; and,
  5. In personal injury cases, the principal and permanent place of residence of the plaintiff.

The so-called “fifth jurisdiction”, the plaintiff’s principal and permanent place of residence was added by the Montreal Convention, and expanded on the Warsaw Convention provisions governing proper forums.  The principal and permanent residence is the “one fixed and permanent abode of the passenger at the time of the accident”.  Article 33 § 3(b).

Under the fifth jurisdiction principle, a plaintiff may bring the lawsuit for personal injuries in the forum in which he or she has principal and permanent place of residence, and to or from which the carrier operates flights and in which the carrier leases or owns commercial premises by itself of by another carrier with which it has a commercial agreement.  A “commercial agreement” means an agreement made between carriers and related to joint service of passengers by air.  Article 33 § 3(a).

Defendants’ Motion To Dismiss on the Basis of FNC in AF 447

After the AF 447 actions were consolidated in the Northern District of California, Judge Charles Breyer dismissed all cases to France based on FNC.  Judge Breyer performed a detailed FNC analysis and concluded that France was an adequate alternative forum, whatever its pacing may be, and that the balancing of private litigant and public interests dictated dismissal was proper.  In re Air Crash Over Mid-Atlantic, 760 F. Supp. 2d 832 (N.D. Cal. 2010).

Judge Breyer noted at the outset, that nothing in the Montreal Convention suggests that the doctrine of forum non conveniens should not apply, and noted that the Montreal Convention is the “exclusive basis for a lawsuit against an air carrier for injuries arising out of international transportation.”  Id., at 835, citing, Kruger v United Airlines, Inc., 481 F. Supp. 2d 1005, 1008 (N.D. Cal. 2007).  Judge Breyer then noted that the party moving to dismiss based on FNC bears the burden of showing that there is an adequate alternative forum and that the balance of private and public interest factors favors dismissal.  Id. at 839 (citing Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142-43 (9th Cir. 2001)).

In Hosaka v. United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 1992), the court ruled that the Warsaw Convention was a constructive override to a court’s discretionary authority to consider a motion to dismiss based on FNC.  Judge Breyer rejected the Hosaka court conclusion that the Warsaw Convention was a constructive override to a court’s discretionary authority to consider a motion to dismiss based on forum non conveniens.  760 F. Supp. 2d 832 at 839-840 (citing Hosaka v. United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 2002)).  Noting the Montreal Convention’s more recent ratification and the position taken by the United States during treaty negotiations supporting forum non conveniens dismissal, Judge Breyer followed the rationale of the courts that have applied the forum non conveniens doctrine in the context of a Montreal Convention case.  See Pierre-Louis v. Newvac, 584 F.3d 1052 (11th Cir. 2009), aff’g sub nom. In re West Caribbean Airways, S.A., 619 F. Supp. 2d 1299 (S.D. Fla. 2007).

As to the elements of FNC, the court found that plaintiffs did “not really contend” that France was an alternative forum, but focused on the assertion that France’s court system is slower and could take several years to conclude complex matters.  760 F. Supp. 2d. at 842.  Therefore, France was an adequate alternative forum.

The Court noted that the private interest factors weighed heavily in favor of dismissal.  The official accident investigation and a criminal investigation were being conducted in France, the physical evidence was in France, defendants had agreed to produce discovery in France, there was no dispute that Air France could be sued in France, and there was “the ability to bring parties together in France in a procedurally sensible fashion “ which would make the trial easier, more expeditious and less expensive.  Id. at 844.

Public interest factors also weighed heavily toward dismissal.  Judge Breyer, citing the public interest factors outlined in Piper and Leuck, reasoned that France was more interested in the litigation than the U.S.  There was a plurality of French citizens on a French flight with a French destination.  Although the rights of the two Americans were legitimate, they were less significant than French interests.  Air France could also be sued directly in France, avoiding “tension” with the Montreal Convention created by the manufacturing defendants attempts to sue Air France as a third-party.  A French forum would also avoid the prospect of U.S. courts having to apply French law.  Judge Breyer also noted that the cases could create unnecessary burdens on the federal judiciary.  Finally, the court stated that the deference to be afforded the U.S. plaintiffs’ choice of forum “does not and cannot” prevent the court from dismissing the case to the adequate alternate forum of France.  Id. at 846-47.

Plaintiffs May Not Create An Unavailable Forum

After Judge Breyer denied plaintiffs’ motion for reconsideration, some of the plaintiffs dismissed the French defendants and refiled, without any substantial change in the facts.  Eight of the U.S. component part manufacturers moved to dismiss two refiled lawsuits.  Judge Breyer agreed with defendants that plaintiffs had created the forum uncertainty, and could not make France an unavailable forum simply by dismissing the French defendants.  Judge Breyer also found that the mere fact that precisely the same lawsuit could not be heard in France did not make France an unavailable forum.  He again dismissed based on the basis of FNC.  In re Air Crash Over Mid-Atlantic, 792 F. Supp. 2d 1090 (N.D. Cal. 2011).

Judge Breyer reasoned that although plaintiffs had freedom to craft their own complaints as they wish, that did not prevent dismissal based on the prior FNC Order, when plaintiffs engaged in pleading practices designed to defeat jurisdiction in the foreign forum and circumvent the order.  Plaintiffs’ good faith and transparency with the court and opposing parties about their desire not to litigate in France was not the test for whether dismissal was appropriate.  Id. at 1096-97.

“Plaintiffs’ argument that, as a general matter, they are free to frame their complaints as they wish ignores entirely the fact that forum non conveniens is by its nature a doctrine that limits plaintiffs’ choices,” Judge Breyer ruled. “Indeed, plaintiffs cite no forum non conveniens cases condoning a post-dismissal refiling designed to make the foreign forum unavailable by omitting the parties necessary to establish jurisdiction abroad. Nor is the court aware of any such authority.”

Id. at 1097.

Judge Breyer also noted that the plaintiffs’ concern that since an FNC dismissal would conditionally obligate them to agree to French jurisdiction, plaintiffs could be without a remedy if the case was dismissed in France.  Judge Breyer ruled that dismissal sua sponte by a French court was not supported by sufficient authority, and denied plaintiffs’ request to return to the United States if the case was dismissed in France.

State Courts May Have Varying Standards for Dismissal Based on Forum Non Conveniens

While most states recognize the doctrine of forum non conveniens, some states may have only incorporated the doctrine into common law recently.  States may also have differing standards for analyzing whether there is an adequate alternative forum and whether the balancing of the private- and public-interest considerations dictates stay or dismissal based on forum non conveniens.

The state most recently incorporating the doctrine of forum non conveniens into state law is Oregon.  On April 16, 2016, the Oregon Supreme Court ruled for the first time that Oregon law included the doctrine of forum non conveniens.  Espinoza v Evergreen Helicopters, Inc., 359 Or. 63 (2016).  The opinion illustrates how state standards for dismissal based on forum non conveniens vary, even though most state courts generally adhere to the framework generally set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) and discussed in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) and cases since.

On March 11, 2008, a 2007 Bell 412EP (N417EV) crashed into remote mountainous terrain near Santa Cruz, Cajamarca, Peru.  The United States certificated airline transport pilot, the Peruvian provisional co-pilot and eight Peruvian miners were killed by impact forces and a post-crash fire.   The helicopter was owned by Evergreen Helicopters, Inc., and leased to Helinka S.A.C., a Peruvian commercial aviation services provider.  Evergreen provided the helicopter, pilots, mechanics, parts, and an on-site contract administrator.  The helicopter was operating on a company visual flight rules flight plan under Peruvian flight regulations.

The accident was investigated by the Peruvian government.  See Informe Final, CIAA-ACCID-005-2008 “Accidente del helicoptero Bell 412EP, de matricula N417EV, operado por la compañía HELINKA SAC, ocurrido el 11 de marzo de 2008, en el Cerro La Cárcel, Distrito de Catache, Provincia de Santa Cruz, Departamento de Cajamarca”, Ministerio de Transportes y Communicaciónes, Comisión de Investigación de Accidentes de Aviación.  http://www.mtc.gob.pe/transportes/aeronautica_civil/ciaa/ciaa.html.  (Last visited 4/27/16).

In its motion to dismiss wrongful death lawsuits filed by relatives of the deceased Peruvian miners, Evergreen argued:

  • The majority of evidence was in Peru.
  • Third-party witnesses were in Peru.
  • A crash site view would only be possible in Peru.
  • There were practical difficulties in Oregon such as a need for interpreters.
  • Evergreen would be unable to implead Helinka as a third-party defendant in Oregon.
  • The crash occurred in Peru, plaintiffs were Peruvian nationals, and Peru had the strongest interest in the controversy.

In response, plaintiffs argued:

  • The doctrine of forum non conveniens had never been expressly recognized in Oregon.
  • Oregon courts are barred from dismissing an action based on forum non conveniens whenever there is jurisdiction and venue in Oregon.
  • Evergreen was headquartered and had its principal place of business in Oregon and substantial evidence was located in Oregon.
  • A factor in the cause of the crash may have been defects in avionics installed by Evergreen in Oregon.

359 Or. at 71-72.

The trial judge granted Evergreen’s motion to dismiss based on forum non conveniens.  The Oregon Court of Appeals reversed, based in part on the trial court’s failure to make sufficient findings on the availability of evidence in Peru.

The Oregon Supreme Court granted Evergreen’s petition for review and considered two issues: (1) whether the doctrine of forum non conveniens is available under Oregon law, and (2) what standards guide its application.

Plaintiffs argued that the doctrine of forum non conveniens should be rejected entirely, contending its origin was “dubious” and that it “is a parochial, xenophobic and outcome-determinative doctrine that permits reverse forum shopping by powerful corporations seeking to altogether avoid accountability in their home forum for transnational torts.”  359 Or. at 76.

Evergreen argued (in part) that the Oregon Court of Appeals gave too much deference to plaintiffs’ choice of Oregon as their chosen forum.  In support of its argument, Evergreen relied on the holding in Piper Aircraft Co., that the ordinary presumption in favor of the plaintiff’s forum choice applies with less force where the plaintiff is not a resident of that forum.  359 Or. at 75 (citations omitted).

The Oregon Supreme Court rejected Evergreen’s argument and agreed with the Washington Supreme Court that there “is no principled reason to vary the degree of deference afforded to the plaintiff’s choice of forum…we defer to a plaintiff’s choice…because it is the plaintiff’s right to choose from those forums that are available to it.”  359 Or. at 105.

The court ruled that the trial judge did not err when it found that Peru was an adequate alternative forum.  However, the court was critical of the trial judge for ruling that a trial in Peru would “best serve” the convenience of the parties.  The court concluded that the trial judge applied the “wrong substantive standard” and abused its discretion when it ruled that a trial in Peru would be “more convenient” rather than “so inconvenient as to be contrary to the ends of justice”.  359 Or. at 119-120.

The Oregon Supreme Court adopted a strict standard, ruling that a trial court may dismiss an action based on forum non conveniens only when

“…the relevant private-and public-interest considerations weigh so heavily in favor of litigating in that alternative form that it would be contrary to the ends of justice to allow the action to proceed in the plaintiff’s chosen forum.”

359 Or. at 102.

Multidistrict Litigation

  • MDL statute, 28 U.S.C. § 1407 enacted in 1968
  • Statute provides in part that “[w]hen civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated proceedings”
  • Transfers made by JPML for “convenience of parties and witnesses and will promote the just and efficient conduct of such actions”
  • Each action transferred remanded to transferor court for trial
  • Transferee forum governs procedural issues
  • Transferor court governs substantive issues
  • JPML consists of seven circuit and district judges, no two from same circuit.
  • Concurrence of four JPML members needed for any action
  • JPML may separate any claim, cross-claim, counter-claim, or third-party claim and remand any claims before remainder of the action is remanded.
  • No discretion to transferee court to remand for trial. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998)
  • No authorities for identification of transferee court in aviation disaster or other mass torts

JPML may consider:

  • Convenience of parties and witnesses
  • Accident location
  • Experience, suitability and caseload of transferee district
  • Location of evidence
  • Existence of related cases in transferee court
  • Location and convenience of counsel
  • Potential number of tag-along cases.

MDL Consolidation Distinguished from 1404(a) Transfer

Transfer pursuant to 28 U.S.C. § 1407 must be distinguished from transfer under 28 U.S.C. § 1404(a), which provides:

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”

Section 1404(a), enacted in 1948, provides no standard for measuring convenience in mass tort cases, but the statute was enacted to allow the most convenience to the greatest number of parties, and was drafted and enacted in accordance with the principles of forum non-convenience.  Yale M. Lyman, Factors of Choice for Venue Transfer under 28 U.S.C. 1404(a), 41 Cal. L. Rev. 507 (1953).

  • Parties more likely to obtain 1404(a) transfer if negotiated
  • Remand to transferor district for trial not required
  • Parties may seek 1404(a) transfer if formation of MDL appears imminent for trial in transferee court
  • Provides for transfer to different division in same district court

Considerations in Parallel State and Federal Cases and When the Government is a Party

Aviation accidents which give rise to parallel state and federal court cases present special challenges.  These include a danger of inconsistent rulings, difficulty coordinating discovery in forums with different procedures and scope of discovery, different experience with federal agencies, and addressing ambiguities over whether a particular issue is substantive or procedural.  See In re Helicopter Crash Near Weaverville, California, 8/5/08  MDL Case No. 3:09-md-2053(Mo) D. Or.; William Henry Coultas, individually, and his wife, Christina Coultas, individually, v. General Electric Company, Multnomah County Circuit Court Case No. 1002-02743; Estate of Roark Schwanenberg v General Electric Company, Multnomah County Circuit Court Case No. 1002-02742.

On August 5, 2008, a Sikorsky S-61N model helicopter crashed in the Trinity Alps National Forest in northern California while transporting firefighters pursuant to a contract between Carson Helicopters and the U.S. Forest Service.  The pilot, a USFS inspector-pilot, and seven contractor-employed firefighters were killed.  The copilot and three firefighters were seriously injured.    The helicopter was designed and manufactured by Sikorsky Aircraft Corporation.  It was nearly 40 years old and had flown well over 30,000 hours.  It was powered by two CT58-140-1 model engines designed and manufactured by GE.  A third-party manufactured the fuel control units on the engines.  The crux of plaintiffs’ complaints was that the pressure regulating valve in the fuel control unit was defectively designed and manufactured, causing a loss of power on the takeoff ascent and a crash seconds later.

NTSB investigators produced over 3,500 pages of data, including more than a dozen factual reports. The NTSB staff investigation found that Carson (1) intentionally understated the helicopter’s empty weight, (2) altered the power available chart to exaggerate the helicopter’s lift capability, and (3) used unapproved above-minimum specification torque in performance calculations.  It also found that the helicopter had been topping on its two prior flights, and it had just refueled before the crash flight, taking on additional weight.  NTSB staff investigation found that the flight crew failed to appreciate and address the prior approaches to the helicopter’s maximum performance capability.  NTSB staff investigators also found that the helicopter was at least 1,000 pounds overweight.

Lawsuits were filed by the injured firefighters and families of the deceased in federal courts in Connecticut, California and Oregon.  In June 2009, the cases were consolidated into an MDL in the District of Oregon.  Carson filed third-party complaints against the United States.  Lawsuits filed on behalf of the pilots in Oregon state court were removed by defendants pursuant to 28 U.S.C. §1331 on the basis that federal questions arose regarding the USFS’ effective status as operator of the flight pursuant to an exclusive use contract and the federal Interagency Helicopter Operations Guide.  Defendants also argued that additional federal questions arose pursuant to FAA rules and regulations and NTSB operations.   The court rejected defendants’ arguments that the federal agencies actions were necessarily at the center of a federal question as required by Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005).  The pilot cases were then remanded to state court.

The MDL included lawsuits filed by and on behalf of the ten injured and deceased firefighters, Carson’s workers’ compensation carrier, and the Estate of the deceased inspector pilot.  In addition, Estate of the deceased PIC and co-pilot obtained permission to intervene into the federal actions although their state court actions were also pending.

Defendants denied Plaintiffs’ allegations and contended that the engines received ample fuel flow during the takeoff on the final flight.  Consistent with the findings of NTSB staff investigators, defendants argued that the helicopter crashed because Carson gave the pilots and the USFS erroneous weight and takeoff power available charts that significantly understated the helicopter’s weight and overstated its load carrying capacity.  Defendants also argued, consistent with NTSB staff factual reports, that the flight crew failed to appreciate and address the helicopter’s arrival at maximum performance capability on the two prior flights.  The state court judge excluded the entire NTSB fact record except for two short laboratory reports.

Two years after the lengthy civil trial in state court, two former Carson employees pleaded guilty to federal conspiracy and other charges arising from the intentional falsification of the weight and takeoff power available charts and were each sentenced to lengthy prison terms.

Considerations for Aviation Disasters with parallel MDL and State Court Cases

  • Coordination of separate discovery procedure and scope in separate forums
  • Binding authority/ conflicting rulings
  • Differing interpretations of substantive and procedural law
  • Relative familiarity of state court judges with federal agencies and aviation, FAA, DOT, NTSB
  • Relative familiarity of state court judges with federal statutes, e. GARA
  • Vastly differing jury selection methods and scope
  • Experts
  • Certification of questions of law
  • Claims or defenses available to the government

Pretrial Choice of Law Issues

  • Choice of law statutes in multiple states
  • Cafeteria plan approach to COL on each issue
  • Availability of punitive damages
  • Wrongful death statutes
  • Statutes of limitation and repose
  • Noneconomic damages caps
  • Comparative fault
  • Allocation of fault to settled parties

The Multiparty, Multiforum Trial Jurisdiction Act

Although the Warsaw and Montreal Conventions addressed many aspect of air crash litigation, they did not specifically address U.S. Federal Court handling of mass disaster litigation, and addressed only aviation related cases.  In 2002, the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA) was enacted to create greater efficiency in the federal system.  The MMTJA grants district courts original jurisdiction where minimal jurisdiction requirements are met, and in which the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location”.  The permissible lawsuits include both wrongful death and personal injury.

The first case arising under the MMTJA was the Rhode Island Station nightclub fire on November 20, 2003 in which 100 people were killed and 230 injured.  Lawsuits were filed throughout New England in state and federal courts.  Passa v. Derderian, 308 F.Supp.2d 43 (D.R.I., 2004).

The  MTJA statute, 28 U.S.C. § 1369, widely broadens federal jurisdiction in mass disaster cases, and provides that the district courts will have original jurisdiction where:

  1. A defendant resides in a State and a substantial part of the accident took place in another State or other location, regardless of whether that defendant is also a resident of the State where a substantial part of the accident took place;
  2. Any two defendants reside in different States, regardless of whether such defendants are also residents of the same State or States; or
  3. Substantial parts of the accident took place in different states.

28 U.S.C. §1369 (a)(1-3).

Under the MMTJA, “minimal diversity” exists between adverse parties if any party is a citizen of a state and any adverse party is a citizen of another state or a foreign state.  Corporations are deemed to be a citizen of any state in which it is incorporated, or has its principal place of business, and is deemed to be a resident of any state in which it is licensed to do business or is doing business.  28 U.S.C. 1369 (c)(1-2).  The district courts must abstain from hearing any action in which the “substantial majority” of all plaintiffs are citizens of a single state in which the primary defendants are also citizens, and any claims that are governed primarily by state law.  28 U.S.C. 1369 (b)(1-2).

Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U.S.C. §1332.

A recent case addressed the MMTJA in the context of an aviation disaster.  On December 30, 2015, the U.S. District Court for the Northern District of Illinois granted the French company Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.  Siswanto, et. al. v. Airbus S.A.S., 2015 WL 9489952.  The case was brought under the Multiparty Multiforum Trial Jurisdiction Act of 2002 (“MMTJA”).  The court reasoned that since the case was brought under the MMTJA, Fed. R. Civ. P. 4(k)(l)(C) and the MMTJA enabled the Court to consider Airbus’s contacts with the United States as a whole, and not just the state of Illinois.  However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the Court’s exercise of personal jurisdiction.

The case arose from a December 28, 2014 crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore.  The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus.

There was no dispute that Airbus was incorporated and had its principal place of business in France.  For at least the past five years, Airbus had not maintained any offices or employees in the U.S. or owned or rented property in the U.S.  All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the U.S. undertook this work.  The A320-216 had been issued a Type Certificate by the European Safety Agency but not the FAA.  The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the U.S. and the aircraft had never been flown in the U.S.

Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause.  Plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’ extensive contacts with the United States as a whole.  The court noted that the traditional “minimum contacts” test from International Shoe still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process.  KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730-31 (7th Cir. 2013) (citations omitted).

In KM Enterprises, the court reasoned that when a federal statute authorizes nationwide service of process, the scope of the minimum contacts test exceeds the forum state’s long-arm statute, and requires “continuous and systematic general business contact” such that Airbus is “essentially at home in the forum, the U.S., not just the State of Illinois.”  See also, Abelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012) (citations omitted).

Strategic Considerations Framing Forum, Removal, MDL, The Montreal Convention, MMTJA, and FNC Considerations

  • State or federal forum.
  • JPML may or may not consider wishes of transferor court in retaining case for pre-trial purposes.
  • May require transferee court to sort through multiple choice-of-law conflicts.
  • Impact on FNC motions.
  • Removal under 28 U.S.C. § 1369 or 28 U.S.C. § 1332.
  • Are related actions removable.
  • Government contracts.
  • Governments as parties, particular government agency considerations.
  • Parallel state court actions may complicate discovery, allow multiple bites at the apple.
  • In aviation cases, if no statute of limitations issues, some actions such as hull cases may be filed after all other cases resolved or tried. JPML may or may not transfer.  See, e.g., In re Helicopter Crash Near Wendell Creek, British Columbia, on August 8, 2002, Multidistrict Litigation No. 3:04MD 1694 (SRU) (D.CT.).
  • Choice of law.
  • S. code-share carrier and defendants.
  • Federal court judges much more familiar with relevant federal agencies, NTSB, FAA, and DOT which may have significant impact of discovery.
  • Plaintiff-friendly jurisdictions/likelihood of removal.
  • Relative objective strength of liability arguments.
  • Personal jurisdiction.
  • Montreal Convention specified remedies and potential impact on FNC motions.
  • Third-party actions, and whether governed by Montreal Convention see, e.g., In re Air Crash Near Nantucket Island, Mass, 340 F. Supp. 2d 240 (E.D.N.Y. 2004).
  • Whether a foreign air carrier is a target defendant.

 

Aviation Law Update: Oregon Supreme Court Rules Doctrine of Forum Non Conveniens is Available in Oregon

On April 16, 2016, the Oregon Supreme Court ruled for the first time that Oregon law included the doctrine of forum non conveniens.  Espinoza v. Evergreen Helicopters, Inc., 359 Or. 63 (2016).  The opinion illustrates how state standards for dismissal based on forum non conveniens vary, even though most state courts adhere to the framework generally set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and discussed in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), and cases since.

On March 11, 2008, a ten passenger 2007 Bell 412EP crashed into remote mountainous terrain near Santa Cruz, Cajamarca, Peru.  Impact forces and a post-crash fire killed the United States certificated airline transport pilot, the Peruvian co-pilot and eight Peruvian miners.  The helicopter was owned by Evergreen Helicopters, Inc., and leased to Helinka S.A.C., a Peruvian commercial aviation services provider.  Evergreen provided the helicopter, pilots, mechanics, parts, and an on-site contract administrator.

In its motion to dismiss the wrongful death lawsuits filed by relatives of the deceased Peruvian miners, Evergreen argued:

  • The majority of evidence was in Peru.
  • Third-party witnesses were in Peru.
  • A crash site view would only be possible in Peru.
  • There were practical difficulties in Oregon such as a need for interpreters.
  • Evergreen would be unable to implead Helinka as a third-party defendant in Oregon.
  • The crash occurred in Peru, plaintiffs were Peruvian nationals, and Peru had the strongest interest in the controversy.

In response, plaintiffs argued:

  • The doctrine of forum non conveniens had never been expressly recognized in Oregon.
  • Oregon courts are barred from dismissing an action based on forum non conveniens whenever there is jurisdiction and venue in Oregon.
  • Evergreen was headquartered and had its principal place of business in Oregon and evidence was located in Oregon.
  • A factor in the cause of the crash may have been defects in avionics installed by Evergreen in Oregon.

359 Or. at 71-72.

The trial judge granted Evergreen’s motion to dismiss based on forum non conveniens.  The Oregon Court of Appeals reversed, based in part on the trial court’s failure to make sufficient findings on the availability of evidence in Peru.

The Oregon Supreme Court granted Evergreen’s petition for review and considered two issues: (1) whether the doctrine of forum non conveniens is available under Oregon law, and (2) what standards guide its application.

Plaintiffs argued that the doctrine of forum non conveniens should be rejected entirely, contending its origin was “dubious” and that it “is a parochial, xenophobic and outcome-determinative doctrine that permits reverse forum shopping by powerful corporations seeking to altogether avoid accountability in their home forum for transnational torts.”  359 Or. at 76.

Evergreen argued (in part) that the Oregon Court of Appeals gave too much deference to plaintiffs’ choice of Oregon as their chosen forum.  In support of its argument, Evergreen relied on one aspect of the holding in Piper Aircraft Co., that the ordinary presumption in favor of the plaintiff’s forum choice applies with less force where the plaintiff is not a resident of that forum.  359 Or. at 75 (citations omitted).

The Oregon Supreme Court rejected Evergreen’s argument and agreed with the Washington Supreme Court that there “is no principled reason to vary the degree of deference afforded to the plaintiff’s choice of forum…we defer to a plaintiff’s choice…because it is the plaintiff’s right to choose from those forums that are available to it.”  359 Or. at 105.

The court ruled that the trial judge did not err when it found that Peru was an adequate alternative forum.  However, the court was critical of the trial judge for ruling that a trial in Peru would “best serve” the convenience of the parties.  The court concluded that the trial judge applied the “wrong substantive standard” and abused its discretion when it ruled that a trial in Peru would be “more convenient” rather than “so inconvenient as to be contrary to the ends of justice”.  359 Or. at 119-120.

The Oregon Supreme Court adopted a strict standard, ruling that a trial court may dismiss an action based on forum non conveniens only when

“…the relevant private-and public-interest considerations weigh so heavily in favor of litigating in that alternative form that it would be contrary to the ends of justice to allow the action to proceed in the plaintiff’s chosen forum.”

359 Or. at 102.

 

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