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Case 2:10-cv-01111-GAF-RZ Document 22 Filed 03/22/11 Page 1 of 33 Page ID #:179

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LINK: 195

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

IN RE AIR CRASH AT MADRID,
SPAIN, ON AUGUST 20, 2008.

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Case No. 2:10-ML-02135 GAF (RZx)
MDL No. 2135
[ALL INDIVIDUAL CASES]

MEMORANDUM & ORDER
REGARDING MOTION TO DISMISS
FOR FORUM NON CONVENIENS

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I.

INTRODUCTION & BACKGROUND

On August 20, 2008, a McDonnell Douglas MD-82 aircraft operated by Spanair

as flight JK5022, crashed during takeoff in Madrid, Spain, killing 154 people and
injuring 18 others. (Docket No. 198, Declaration of Thomas K. Dodt (“Dodt Decl.”)
¶¶ 3, 6.) Evidence shows that the plane crashed after its takeoff warning system
(“TOWS”) did not sound to alert the pilots that the wings’ slats and flaps were not
configured in takeoff position. (Id. ¶¶ 11, 15.) Now, 204 plaintiffs, most of whom are
citizens of Spain and none of whom are United States citizens, represent 100 passengers
and estates who have brought 116 wrongful death and personal injury suits asserting
negligence and strict products liability claims against McDonnell Douglas Corp., its
successor, the Boeing Company, and various alleged component manufacturers. (Docket
No. 199, Declaration of Douglas E. Winter (“Winter Decl.”) ¶ 3.) These suits were

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brought in several district courts and have been consolidated in the Central District of
California by the Judicial Panel on Multidistrict Litigation. (Docket No. 1.)

Defendants, who have stipulated to submit to the jurisdiction of the Spanish

courts over these cases, note the strong interest of Spain in the outcome of this litigation
given that the aircraft operator, pilots, and most victims are Spanish citizens and that the
accident occurred at a Spanish airport on Spanish soil. They now move to dismiss this
case under the doctrine of forum non conveniens. (Docket No. 195.) Plaintiffs oppose
and assert that this product liability action, which is brought against United States
defendants who are allegedly responsible for defects in the aircraft and the resulting
deaths and injuries, should be heard in United States courts.

Having fully considered the parties voluminous briefing and their arguments at
the hearing on this motion, the Court concludes that Defendants’ motion is meritorious.
Accordingly, for the reasons discussed in detail below, the Court GRANTS the motion
and dismisses the pending lawsuits.

II.

FACTS

A. THE ACCIDENT

On August 20, 2008, a McDonnell Douglas MD-82 aircraft operated by Spanair
as Flight JK5022, crashed on takeoff at Barajas Airport in Madrid, Spain. (Dodt Decl. ¶
3.) The flight was bound for Las Palmas de Gran Canaria, Spain. (Id.) Of the 172
people on board, only 18 survived. (Id. ¶ 6.) The victims were predominantly Spanish.
The Plaintiffs in these suits represent 100 passengers, of whom 92 are Spanish, three
German, one Brazilian, one Gambian, one Indonesian, one Swedish, and one Turkish.
(Winter Decl. ¶ 4.) There were no American citizens on the flight.

It is undisputed that the plane crashed because leading-edge slats and trailing-

edge flaps that pilots must extend at takeoff were retracted. (Dodt Decl. ¶ 14; Opp. at 2.)
The dispute is over who or what is responsible for the slats’ and flaps’ improper
configuration.

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The Spanish Civil Aviation Accident and Incident Investigation Commission

(“CIAIAC” or “the Commission”) initiated an investigation and invited the U.S.
National Transportation Safety Board (“NTSB”) and Federal Aviation Administration
(“FAA”) to participate. (Dodt Decl. ¶ 4.) The Commission issued an interim report on
the causes of the accident in August of 2009. (Docket No. 300, Appendix, Ex. C.) The
interim report explained that, after the plane left the gate, the Ram Air Temperature
Prove (“RAT”), a piece of equipment designed to be heated during flight to avoid ice
accumulation in the instrument, reflected an abnormally high temperature. (Id. at 100,
110.) The plane returned to the gate where maintenance personnel disabled the relay
(the R2-5) that was routing power to the RAT. (Id.) According to plaintiffs, that same
relay routes power to the “Takeoff Warning System” (TOWS). This system is part of the
plane’s “Central Aural Warning System” (CAWS), which provides various audible
warnings to the crew when certain potentially unsafe conditions arise or when
components are improperly configured. (Id. at 106.) The TOWS provides warnings, in
the form of an alternating sequence of tones and a synthetic voice, when the slats and
flaps are not configured for takeoff. (Id. at 106–07.)

In short, according to plaintiffs, when the relay was disabled, TOWS was cut off
from its power supply and was rendered inoperable during the takeoff of Flight JK5022.
When the pilots began to accelerate that aircraft down the runway, they did not receive
the aural warning that the flaps and slats were not properly deployed. (Id.)

The interim report concluded that, in addition to the TOWS failure, other

systems failed, allowing the plane to attempt to take off without the proper slat and flap
configuration: compliance with the airplane configuration checklist and the checklist to
confirm and verify the airplane’s actual configuration. (Docket No. 300, Appendix, Ex.
C at 138.) Spanair’s normal procedures require the slats and flaps to be checked after the
engines are started, during taxi, and when takeoff is imminent. (Id. at 128–29.) The
recording from the cockpit voice recorder shows that the pilots did not perform the
engine-start check and that the pilot did not respond to the co-pilot’s check during taxi.

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(Id. at 118.) Although the pilots voiced the final “takeoff imminent” check, the
Commission concluded that they did not actually check the cockpit indicators to confirm
the slats’ and flaps’ positions. (Id. at 137.) Defendants highlight that other things also
would have indicated that the slats and flaps were not appropriately configured: the
position of the cockpit lever controlling the flaps and slats, an illuminated cockpit
display showing the slats’ and flaps’ positions, and indicators of an imminent stall.
(Dodt Decl. ¶ 12.)
B. THE ACCIDENT AIRCRAFT

MD-82s were designed, tested, and certified by MDC in Long Beach,

California, during the late 1970’s and early 1980’s. (Dodt Decl. ¶ 8.) The FAA certified
the MD-82 aircraft type on July 29, 1981. (Id. ¶ 8.) MDC sold more than 569 MD-82
airplanes to airlines around the world before ceasing production in 1997. (Id.)
According to Plaintiffs, U.S. operators bought 361 of these. (Opp. at 22.)

The accident aircraft was built in Long Beach in 1993 and delivered to Korean

Airlines that year. Spanair, an airline incorporated and having its principal place of
business in Spain, began operating the aircraft in 1998 under Spanish registration. (Dodt
Decl. ¶¶ 7, 9.)

Leach International Corp. designed, manufactured, assembled, tested, and

certified the R2-5 relay for the accident aircraft. (Winter Decl. ¶ 7.) The other
Defendants are alleged to have manufactured component parts, but deny any knowledge
that any of their products were used on the accident aircraft. (Id. ¶¶ 8–11.)
C. CRIMINAL INVESTIGATION

Madrid’s “Examining Court 11” is currently conducting a criminal investigation

of the accident. (Docket No. 197, Declaration of Prof. Pablo Salvador-Coderch
(“Salvador Decl.”) ¶ 17.) In October 2008, the court charged two Spanair mechanics and
the head of Spanair’s maintenance department with 154 counts of manslaughter and 18
counts of negligent injury, but shortly thereafter dismissed the charges against one of the

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mechanics. (Id.) Those proceedings are still in the investigative phase. (Deposition of
Prof. Pablo Salvador-Coderch (“Salvador Depo.”) at 124:4–125:4.)

In Spain, criminal proceedings resolve civil claims for damages that proximately

resulted from a defendant’s criminal offense. (Salvador Decl. ¶ 18.) Employers have
respondeat superior liability for these damages. (Id.) Victims or their representatives or
estates, however, can waive their right to compensation through the criminal proceedings
and pursue a separate civil action against those persons and their employers. (Id. ¶ 20.)
D. ALLEGEDLY SIMILAR PRIOR CRASH

Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar
to a crash of a McDonnell Douglas MD-82 on takeoff from Detroit Metropolitan Airport
in 1987. (Mem. at 1.) According to Plaintiffs, the NTSB concluded that the TOWS
system in that plane did not receive electrical power and thus failed to warn the crew that
the plane was not properly configured for takeoff. (Id.) Plaintiffs further report that the
NTSB made six recommendations, including a design modification that would illuminate
a “fail” light in the event of a circuit power loss, but Defendants did not adopt that
recommendation. (Id. at 1–2.) Plaintiffs contend that TOWS failures now account for
49 accidents. (Id. at 7.) On the basis of these allegations, Plaintiffs contend that “[t]his
case is about a design defect that remains uncorrected despite Defendants’ knowledge of
it for over 20 years.” (Id. at 2.)

Defendants dispute Plaintiffs’ description of the Detroit accident’s cause and the

recommendations following its investigation. (Reply at 1.)
E. DEFENDANTS’ STIPULATION

As a condition for a forum non conveniens dismissal, Defendants have agreed

to:

(1) submit to jurisdiction before the appropriate Court of First Instance in Spain;
(2) toll any applicable Spanish statute of limitations for 120 days after dismissal
by this Court;

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(3) make available in Spain all evidence and witnesses located in the U.S.
within their possession, custody, or control that the Spanish court deems
relevant; and
(4) satisfy any final, post-appeal judgment awarded against them in Spain.

(Winter Decl. ¶ 2.)

A. LEGAL STANDARD

III.

ANALYSIS

The doctrine of forum non conveniens authorizes a district court to dismiss an
action even though the court has jurisdiction. Cariajano v. Occidental Petroleum Corp.,
626 F.3d 1137, 1144 (9th Cir. 2010). Circuit law teaches that, because dismissal is a
drastic step, “forum non conveniens [is] ‘an exceptional tool to be employed sparingly.’”
Id. (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)).

A party moving to dismiss based on forum non conveniens grounds “bears the
burden of demonstrating an adequate alternative forum, and that the balance of private
and public interest factors favors dismissal.” Id. at 1145. Ordinarily, there is “a strong
presumption in favor of the plaintiff’s choice of forum,” Piper Aircraft Co. v. Reyno, 454
U.S. 235, 255 (1981), and the doctrine does not require plaintiffs to choose the most
convenient forum, Cariajano, 626 F.3d at 1144. Where plaintiffs are foreign, however,
their “choice deserves less deference.” Piper Aircraft, 454 U.S. at 256.
B. APPLICATION

1. ADEQUATE ALTERNATIVE FORUM
In general, a defendant can prove the existence of an available “alternative

forum” by showing that it is “amenable to process” in another jurisdiction. Id. at 255
n.22. Where, however, “the remedy offered by the other forum is clearly
unsatisfactory,” such as where the forum does not permit litigation of the subject matter
of the dispute, then “the other forum may not be an adequate alternative.” Id. The
possibility of an unfavorable change in law, without more, does not render a forum

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inadequate. Id. at 238. It is enough that the forum provide a plaintiff with a “sufficient
remedy for his wrong.” Dole Food Co., 303 F.3d at 1118.

Defendants have agreed, as a condition of dismissal, to “submit to jurisdiction
before the appropriate Court of First Instance in Spain.” (Winter Decl. ¶ 2.) Spanish
courts recognize such consent to jurisdiction. (Salvador Decl. ¶ 39.) Plaintiffs object
that Defendants’ stipulation is “illusory” because they have promised only to submit to
jurisdiction they deem “appropriate” for a narrow window of time and they have agreed
only to toll, not to waive, the statute of limitations. (Opp. at 15.) Defendants have
responded that they will agree to “any reasonable rewording of their stipulation if
necessary to resolve any doubt about Plaintiffs’ ability to maintain civil suits in Spain
following dismissal here.” (Reply at 6.) This Court has previously approved a
substantially similar stipulation in another foreign air crash case. See Van Schijndel v.
Boeing Co., 434 F. Supp. 2d 766, 773, 774–75 (C.D. Cal. 2006). In light of this
stipulation, the Court concludes that Defendants are amenable to process in Spain

Plaintiffs do not dispute, as a general matter, that the Spanish judicial system
recognizes negligence and strict liability claims and allows recovery for economic and
non-economic damages. Rather, Plaintiffs contend that Spain does not provide them
with an adequate alternative forum (1) because Plaintiffs face an “immeasurable delay”
in obtaining adjudication of their civil claims because their civil suits will be indefinitely
stayed pending resolution of the criminal proceedings against the two mechanics, and (2)
because Plaintiffs will not be able to pursue claims against these defendants if they
participate in the ongoing criminal proceedings. (Opp. at 12–15.) The Court addresses
each contention in turn.

a. Delay Resulting from Stay Pending Resolution of Criminal
Proceedings

Plaintiffs explain that, under Spanish law, civil proceedings relating to the air

crash must be stayed pending resolution of the related criminal proceedings. (Opp. at 12;

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Docket No. 255, Declaration of Santiago Alvarez Gonzalez (“Alvarez Decl.”) at 3.)1
Thus, they contend, civil proceedings will be indefinitely stayed, as criminal proceedings
are still in the first of three phases after more than two years. (Opp. at 14; Salvador
Decl. ¶¶ 17, 21; Salvador Depo. at 124:4–125:4.) Plaintiffs emphasize that U.S. courts
could not properly stay proceedings for such an indefinite and potentially long period
and argue that the Court should not “accomplish by proxy that which it would be
prohibited from doing directly.” (Opp. at 13–14.) In addition, Plaintiffs point to cases
holding that significant delays render alternative fora inadequate. See Bhatnagar v.
Surrendra Overseas Ltd., 52 F.3d 1220, 1228 (3d Cir. 1995) (holding that Indian court’s
backlogs creating up to 25-year delay rendered that forum inadequate).

The evidence does not support the premise of Plaintiff’s argument, that civil

proceedings against Defendants cannot begin until resolution of the criminal proceedings
against the Spanair mechanics. In support of their argument that civil proceedings will
be stayed indefinitely pending resolution of the criminal case, Plaintiffs cite Articles 111
and 114.1 of the Criminal Prosecution Act. (Alvarez Decl. at 4.) According to
Plaintiffs’ expert, Article 111 provides that “while a criminal action is pending, a civil
action shall not be brought separately until such a time as the former is decided by final
judgment,” except in certain inapplicable situations. (Id.) Similarly, Article 114.1
provides that, “[c]riminal proceedings having been instituted to look into a crime or
misdemeanor, no lawsuit in connection with the same matter may continue, and, if
already filed, it shall be suspended at its then present stage until such a time as a final
judgment is rendered in the criminal case.” (Id.) Plaintiffs’ expert also cites a 2004
Spain Supreme Court case noting that while criminal proceedings are pending, aggrieved

1 Defendants object to Alvarez’s declaration in its entirety and request that it be stricken because
(1) it is not certified by a qualified interpreter, (2) it lacks foundation and is not based on personal
knowledge, (3) it is not authenticated, (4) Alvarez is not qualified as an expert in Spanish law,
and (5) it is based on incomplete facts and assumptions contrary to fact. (Docket No. 280,
Defendants’ Objections at 2–4.) Because the Court grants Defendants’ motion to dismiss, it
DENIES the request to strike as moot.

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persons cannot bring civil claims against parties involved in the criminal proceedings or
against other persons. (Id. at 4–5.)

Defendants’ expert, Prof. Salvador, however, has persuasively countered that

Article 114 was effectively repealed by Article 40 of the 2000 Civil Procedure Act.
(Docket No. 278, Supplemental Declaration of Prof. Pablo Salvador-Coderch (“Supp.
Salvador Decl.”) ¶ 2.) In support, Defendants’ expert, Prof. Salvador, cites a 2005
opinion by the Court of Appeals of Las Palmas de Gran Canaria and a prominent treatise.
(Id.) The expert also attests that over 150 reported decisions in Spanish courts have
refused to stay civil actions during the pendency of related criminal proceedings. (Id. ¶¶
2, 6.) Under the new law, civil proceedings will be stayed only if the criminal decision
would have a “decisive influence in the civil decision.” (Id. ¶ 2.) Further, even where
civil proceedings are stayed, the court will conduct the proceedings and suspend only the
entry of final judgment pending resolution of the criminal case. (Id. ¶¶ 2, 3.)

At the hearing on this motion, Plaintiffs attacked this explanation of the Spanish

system by pointing out purported inconsistencies in Prof. Salvador’s testimony. First,
Plaintiffs emphasized Prof. Salvador’s deposition testimony that a victim could not “sue
on the same cause of action against the same defendant in two different courts.”
(Salvador Depo. at 120:22–24.) This suggests only that the victims could not pursue
civil claims against Spanair or its mechanics while the criminal case was pending. It
does not suggest that victims could not pursue a different cause of action against
different defendants during the pendency of the criminal case. Second, Plaintiffs
emphasized Prof. Salvador’s testimony that trial could proceed “but will not be
adjudicated until criminal proceedings end. . . . Pretrial hearing will probably take place,
trial will take place and then the court will stop.” (Id. at 162:24–163:6.) This is
consistent with his later declaration that a stay would only suspend entry of final
judgment, not the proceedings through trial. Finally, Plaintiffs point to Defendants’
representation of the law in their opening memorandum of points and authorities, which
stated that “Spanish law . . . stays any civil actions against [Spanair and its employees]

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pending the outcome of the criminal matter.” (Mem. at 7.) Again, this representation
does not conflict with Prof. Salvador’s later declaration. Rather, this representation
indicates only that the civil action against Spanair will be stayed, and it does not specify
whether that stay would suspend all proceedings or only entry of final judgment. For
these reasons, Plaintiffs have not persuaded the Court that Prof. Salvador has incorrectly
described the current state of Spanish law regarding stays of civil proceedings. The
Court accordingly concludes that, if Plaintiffs re-file these cases in Spain, the Spanish
courts will either not stay those cases at all or will conduct the full proceedings and stay
only the entry of final judgment pending resolution of the criminal case.2

The possible delay in entering final judgment in the civil case pending

resolution of the criminal proceedings does not render the Spanish forum inadequate.
Plaintiffs contend that there is “no estimate” for how long the criminal proceedings will
last but cite an earlier air crash case in Spain in which criminal proceedings did not
conclude until 11 years after the accident.3 (Opp. at 14; Alvarez Decl. at 13.) Even
assuming the criminal proceedings relevant here will take similarly long, and thus
assuming that final judgment in the civil proceedings cannot be entered for 11 years, this

2 Plaintiffs also dispute the relevance of Defendants’ evidence that a Spanish court declined to
stay a civil suit that thirteen plaintiffs have brought against Spanair. (See Docket No. 279,
Declaration of Maria T. Cetta (“Cetta Decl.”) ¶¶ 2, 4, 6–7.) Plaintiffs contend that the decision
not to stay that case was “a shock” and is expected to be overturned. Moreover, they contend,
even if it is not overturned, that case does not shed light on whether a court would likely stay a
case against the manufacturer-defendants. That case was brought against Spanair under the
Montreal Convention, which imposes liability without fault on the airline alone and without
regard to criminal responsibility. Thus, unlike in this case, whether the mechanics may have been
criminally responsible would not bear on Spanair’s liability in that case. Although this reasoning
is persuasive, the Court does not rely on the decision declining to stay the civil case against
Spanair in concluding that proceedings will not be stayed if these cases are re-filed in Spanish
court.

3 Plaintiffs also suggest that final resolution of claims “could take up to 20 years,” but they offer
no persuasive evidence supporting this estimate. The evidence they cite shows that it took 20
years to resolve a claim against the government relating to an air crash. (Opp. at 14; Alvarez
Decl. at 13.) Such claims are heard in a different kind of court than the civil claims Plaintiffs
seek to pursue. (See Salvador Decl. ¶ 4.)

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does not make the Spanish forum unavailable. Indeed, though not desirable, complex
litigation of the sort presented in this case could take nearly as long to resolve in this
forum. The Detroit Northwest airlines crash that Plaintiffs claim is similar to the crash
here was not finally resolved until just two months shy of nine years after the accident.
See In re Air Crash Disaster, 86 F.3d 498, 511 (6th Cir. 1996). And that case was no
doubt less complicated than this case, which will likely involve application of foreign
law and the need to translate documentary evidence and testimony of witnesses. The
Court accordingly concludes that the potential delays stemming from the need to await
entry of judgment pending resolution of criminal proceedings against Spanair and/or its
employees do not render the Spanish forum inadequate.

b. Inadequacy Due to Participation in Criminal Proceedings

Plaintiffs next contend that the Spanish forum is inadequate because Plaintiffs

who seek compensation through the criminal proceedings will not be able to pursue
claims against the manufacturing defendants. (Opp. at 15.) In support, they point to
deposition testimony by Defendants’ expert that “the same harm . . . cannot be fully
compensated twice.” (Salvador Depo. at 274:9–23.) Thus, if the mechanics are found
criminally liable, they will be ordered to fully compensate plaintiffs, and plaintiffs
therefore will not be able to recover from the manufacturing defendants for those same
harms. This argument misses the mark. It shows only that Plaintiffs will be barred from
winning a windfall double recovery, not that they will not be able to recover at all.
Plaintiffs cannot claim that the Spanish forum is inadequate because it allows them to
recover for their losses only once. Moreover, Plaintiffs will not be barred from seeking
recovery from the manufacturing defendants if they waive their rights to compensation
before the end of the criminal proceedings. (Salvador Decl. ¶ 20.)

Moreover, as a practical matter, the rule against double recovery does not

threaten to absolve the manufacturing defendants of all liability. If the mechanics are
convicted for offenses committed within the scope of their employment, their employer,
Spanair, will be liable for the damages. (See Salvador Decl. ¶ ¶ 18, 63.) Spanair would

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then be able to sue other joint tortfeasors to establish their joint and several liability.
(Alvarado Decl. at 6–7 (explaining that a person “convicted in criminal proceedings can
bring a civil action against parties who may be concurrently liable” and that a civil
complaint against the U.S. manufacturers “would most probably only determine whether
the manufacturers are jointly and severally liable for an amount equal to the amount of
the criminal judgment”).)

For these reasons, the Court concludes that the bar against double recovery does
not render the Spanish forum inadequate. Spain is an available and adequate alternative
forum, and Defendants have met their burden to satisfy the first requirement for
dismissal on forum non conveniens grounds.

2. PRIVATE AND PUBLIC INTEREST FACTORS
The Court must next weigh the private and public interest factors. To show that

the private and public interest factors favor dismissal, a defendant must show “facts
which either (1) establish such oppressiveness and vexation to a defendant as to be out of
all proportion to plaintiff’s convenience, which may be shown to be slight or
nonexistent, or (2) make trial in the chosen forum inappropriate because of
considerations affecting the court’s own administrative and legal problems.” Koster v.
(Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947); accord Piper Aircraft, 454
U.S. at 241. The Court concludes that the private and public interest factors both favor
dismissal and that trial in a U.S. forum would be inappropriate because of the Court’s
own administrative concerns.

a. Private Interest Factors

Private interest factors include “(1) the residence of the parties and the

witnesses; (2) the forum’s convenience to the litigants; (3) access to physical evidence
and other sources of proof; (4) whether unwilling witnesses can be compelled to testify;
(5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7)
all other practical problems that make trial of a case easy, expeditious and inexpensive.”
Cariajano, 626 F.3d at 1151 (quoting Boston Telecomms. Grp. v. Wood, 588 F.3d 1201,

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1206–07 (9th Cir. 2009)). The Court addresses the factors relating to witnesses—the
first, fourth, and fifth—together and then addresses the remaining factors in turn.

1. Residence of Parties and Witnesses, Whether Unwilling
Witnesses Can be Compelled to Testify, and the Cost of
Bringing Witnesses to Trial

In evaluating the private interest factors relating to witnesses, the Court focuses

“not on the number of witnesses . . . in each locale,” but rather “evaluate[s] ‘the
materiality and importance of the anticipated witnesses’ testimony and then determine[s]
their accessibility and convenience to the forum.’” Lueck, 236 F.3d at 1146 (quoting
Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335–36 (9th Cir. 1984)) (alterations
omitted).

Plaintiffs all reside outside of the United States and Defendants all are

incorporated in and have their principal places of business in the United States.4 None of
the defendants is incorporated in California, and only Leach has its principal place of
business in this state, in Buena Vista. (Winter Decl. ¶¶ 6–11.) MDC had its principal
place of business in California, but it is no longer a separate legal entity from Boeing.
Defendants, however, requested consolidation in the Central District of California
because, as compared to the Middle District of Florida and the Northern District of
Illinois—the other courts in which actions were filed—this forum “is more centrally
located to the defendants’ operations and certain documents and witnesses.” (Id. ¶ 12.)
Both Spain and the United States are home to sets of witnesses. Plaintiffs point

to witnesses relevant to establishing a defect in the aircraft who reside in the United
States, while Defendants point to witnesses relevant to other potential causes of the crash
and to damages, who reside in Spain and elsewhere. In particular, the United States is

4 Of the Plaintiffs, 193 are Spanish, three are German, three are Turkish, two are Gambian, two
are Indonesian, and one is Swedish. (Winter Decl. ¶ 3.) These plaintiffs represent 100
passengers, 92 of which are Spanish, three German, one Brazilian, one Gambian, one Indonesian,
one Swedish, and one Turkish. (Id. ¶ 4.)

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home to FAA and NTSB representatives and others who participated in the certification
of the MD-82 design, the investigation of the allegedly similar Detroit crash, the
examination of certification requirements after the Detroit crash and other incidents,
Defendants’ outreach to notify operators of the problems, and design and certification of
TOWS. On the other hand, many liability witnesses reside in Spain, including current
and former Spanair employees, air traffic controllers, eyewitnesses, accident
investigators, aviation regulators, and personnel who planned and participated in rescue
operations. In addition, almost all damages fact witnesses reside in Spain, including
Plaintiffs, spouses, relatives, friends, employers, health care providers, and accountants.5

All of this evidence is highly relevant to each side’s case. Plaintiffs seek to

present testimony by people involved with certifying the MD-82 and TOWS designs and
with investigating the Detroit crash and examining certification requirements in its
aftermath. This testimony, they say, will help them prove the existence of a defect and
negligence on the part of Defendants to support their strict products liability and
negligence theories of recovery. Defendants minimize the importance of this evidence,
arguing that neither TOWS nor the R2-5 relay was found to have failed in the Detroit
crash and that the TOWS design has since changed. (Reply at 1.) These arguments,
however, dispute the materiality of Plaintiffs’ evidence on the merits, not the materiality
to Plaintiffs’ case as they have framed it.

Defendants’ evidence is also relevant to their case. Defendants contend that
they are not responsible for the accident because Spanair’s mechanics failed to correct
the overheating RAT probe and because Spanair’s pilots failed to set the slats and flaps
for takeoff, failed to perform three mandatory checks of those slats and flaps, and failed
to respond to multiple other takeoff configuration warnings. (Reply at 2.) Testimony of

5 Plaintiffs object that Defendants have not identified foreign witnesses with sufficient
particularity, as they describe only categories of possible witnesses rather than individual people.
(Opp. at 19.) “Defendants’ identification of categories of witnesses is sufficient to balance the
parties’ interests,” however. Van Schijndel, 434 F. Supp. 2d at 778.

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Spanair employees, air traffic controllers, eyewitnesses, and accident investigators will
plainly be material to making out this case. Thus, as in the Van Schijndel case regarding
the Singapore air crash, Defendants will try to prove that the owner-operator “improperly
maintained the . . . equipment and that Plaintiffs’ injuries were caused by the crash itself,
the crew’s actions, improper maintenance, or other factors and not by the equipment’s
alleged defect or malfunction.” Van Schijndel, 434 F. Supp. 2d at 777. As in that case,
Defendants’ liability witnesses in Spain are “quite relevant” to the case. Id.

If the action were maintained here, Defendants would be required to obtain the

testimony of witnesses in Spain through letters rogatory pursuant to the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
(Salvador Decl. ¶ 47.) This process has limitations, and courts have noted its
shortcomings, however. See, e.g., Melgares v. Sikorsky Aircraft Corp., 613 F. Supp. 2d
231, 243 n.8 (D. Conn. 2009) (describing obtaining testimony of Spanish witnesses
through letters rogatory as “a difficult and time-consuming—if not altogether
futile—endeavor”); Da Rocha v. Bell Helicopter Textron, Inc., 451 F. Supp. 2d 1318,
1325 (S.D. Fla. 2006) (describing letters rogatory as “notoriously inefficient”). The
Hague Convention would not allow Defendants to compel live testimony at trial. See
Mastafa v. Australian Wheat Bd. Ltd., No. 07-7955, 2008 WL 4378443, at *8 (S.D.N.Y.
Sept. 25, 2008). Instead, they would have to rely on deposition transcripts. The
Supreme Court has noted that holding a trial at a location “where litigants cannot compel
personal attendance and may be forced to try their cases on deposition, is to create a
condition not satisfactory to court, jury or most litigants.” Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 511 (1947), superseded by statute on other grounds as recognized in In re Air
Crash Over Taiwan Straits on May 25, 2002, 331 F. Supp. 2d 1176, 1180 (C.D. Cal.
2004).

Plaintiffs could face similar difficulties obtaining witnesses in Spain. Although

Defendants have promised to “make available in Spain all evidence and witnesses
located in the U.S. within their possession, custody, or control that the Spanish court

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deems relevant” (Winter Decl. ¶ 2), Defendants do not exercise control over all potential
witnesses, including FAA and NTSB officials and former MDC employees. If this
action proceeded in Spain, Plaintiffs would have to obtain the testimony of these U.S.
witnesses through letters rogatory or pursuant to 28 U.S.C. § 1782, which allows a
district court to order a person to “give testimony . . . for use in a proceeding in a foreign
. . . tribunal.” 28 U.S.C. § 1782(a). This procedure, like the procedure prescribed by the
Hague Convention, would not allow parties to compel live witness testimony. See id.

Both parties will also face limits on their ability to engage in pre-trial discovery
if these cases are not litigated in their forum of choice. If this case is litigated in Spain,
Defendants have promised only to make available that evidence and those witnesses
“that the Spanish court deems relevant.” (Winter Decl. ¶ 2.) According to Plaintiffs, this
shifts the burden on Plaintiffs to make out a case of relevance before obtaining the
evidence that would prove relevance. The Court is not persuaded, however, that this
purported barrier is substantially different than the relevance obligation on one seeking
discovery under the Federal Rules. Moreover, Defendants face a similar, if not more
substantial, barrier to their pre-trial discovery if these cases are tried here. Spain does
not honor letters rogatory requesting pre-trial discovery. (Salvador Decl. ¶ 47); see also
Hague Convention on the Taking of Evidence Abroad, 23 U.S.T. 2555, Art. 23 (“A
Contracting State may . . . declare that it will not execute Letters of Request issued for
the purpose of obtaining pre-trial discovery of documents as known in Common Law
countries.”); Philip W. Amram, Explanatory Report on the 1970 Hague Evidence
Convention at 4 (1970), available at http://hcch.e-vision.nl/upload/expl20e.pdf
(explaining that Article 23 “refers to a procedure by which one of the Parties to an action
may obtain access, before trial, to documents in the possession of his adversary, to aid
him in the preparation of his pleadings or in preparation for trial”). Defendants will
accordingly not be able to obtain testimony relevant to their case before trial.

Thus, no matter where these suits are tried, one side will face difficulty in

gathering evidence and presenting witnesses for its case. If the cases go forward here,

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Defendants will have to rely on cumbersome letters rogatory to get deposition testimony
from foreign individuals with information relevant to the question of what or who was
responsible for the crash. If the cases go forward in Spain, Plaintiffs will similarly get
only deposition testimony from some witnesses with information relevant to a design
defect in the aircraft and to the possible negligence of Defendants. In either situation,
the out-of-country evidence will be central to one party’s case.

Although the comparative availability of witnesses may thus be in equipoise, the

relative costs of bringing witnesses to trial is not. Those costs will likely be greater if
this case is tried in this forum. Over 200 plaintiffs have brought suit on behalf of 100
victims of the crash. Damages testimony—from family, friends, and doctors—will be
necessary for each of the 100 victims. All plaintiffs and the decedents they represent are
from outside of the United States. The cost of travel for these witnesses alone is
extremely high. Because almost all of the decedents come from Spain, the costs
associated with obtaining testimony from those witnesses in that country would be far
lower. If these cases proceed in Spain, Defendants will have to bear the cost of bringing
their U.S.-based representatives there to testify. There are far fewer such U.S.-based
witnesses, however. These witnesses will all offer testimony relevant to liability, a
question common to all 204 plaintiffs. Thus, there will almost certainly be far fewer
U.S.-based witnesses traveling to Spain than Spain-based witnesses traveling to the U.S.
to provide individualized damages evidence for each plaintiff.

In light of the significant disparity in cost, the Court concludes that the witness-

related factors slightly favor dismissal.

2. Forum’s Convenience to the Litigants

This forum is plainly closer to home for Defendants, while the alternative

Spanish forum is closer to home for Plaintiffs. But Plaintiffs wish to litigate here, while
Defendants wish to litigate in Spain. Thus, both parties have shown their willingness to
accept the inconvenience associated with geography. Plaintiffs, however, contend that
Spain is an inconvenient forum for them because no single court would have jurisdiction

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over all the parties the Defendants claim should be included, including the airline, the
manufacturers, rescue personnel, and airport operators. (Opp. at 19–20.) That, however,
is also true here; this Court cannot exercise jurisdiction over all parties either. The Court
concludes that this factor is neutral.

3. Access to Physical Evidence and Other Sources of Proof

As with witnesses, physical evidence exists in both the U.S. and Spain. On the
one hand, documents relating to the design and certification of the MD-82 and TOWS
and to the Detroit crash and investigation are present in the U.S. On the other hand,
several categories of evidence relevant to liability are in Spain: the accident site, the
aircraft wreckage, the aircraft’s flight data and cockpit voice recorders, recordings of air
traffic/ground control communications with the flight crew, Spanair hiring and training
records, Spanair flight operations records, Spanair maintenance records for the aircraft
and component parts, information developed by the official investigation, and regulatory
documents. (Dodt Decl. ¶¶ 18–24.) In addition, most evidence relevant to computing
damages is present in Spain, including the victims’ employment, financial, and medical
records, records of funeral expenses, and documents evidencing non-economic damages.
Plaintiffs object that Boeing actually has a lot of the purportedly Spain-based data in its
possession because it participated in the investigation by Spanish authorities. (Opp. at
5–7.) Although Boeing does admit to having some evidence, including a transcript of
the cockpit voice recorder, it does not have access to all such evidence.
(See Steelhammer Depo. 73–76.) Moreover, as this Court has noted before, “the fact
that Boeing may have participated or assisted in some form in the investigation of the
crash does not imply that Defendants have access to any of the other records of that
investigation.” Van Schijndel, 434 F. Supp. 2d at 777. Thus, evidence is present in both
the U.S. and Spain. For the reasons set forth above in the discussion regarding
witnesses, this evidence is material to the Defendants’ and Plaintiffs’ respective cases.

This evidence would be obtainable regardless of the forum. The U.S. and Spain
are both signatories to the Hague Convention on the Taking of Evidence Abroad, which

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provides a way to obtain evidence from entities and individuals in foreign jurisdictions.
In addition, litigants in foreign tribunals can seek production of documents from people
in the U.S. pursuant to 28 U.S.C. § 1782. Spain does not allow requests for pre-trial
discovery of documents, but otherwise follows the Convention. Plaintiffs acknowledged
at the hearing that documents are portable and could be used in Spanish court. Although
Defendants claim that they cannot obtain information from the CIAIAC’s investigation
because only a Spanish court, not a U.S. court, can order disclosure of investigation
evidence, they did not explain why they could not use the procedures established by the
Hague Convention to enlist the help of a Spanish court in ordering the disclosure of
those documents. Only the actual accident site is not obtainable in a foreign forum, but it
is unlikely that a finder of fact would have to visit the site given Defendants’ theories of
the accident’s cause—the site will not reveal what happened on the plane before the
crash. For these reasons, it appears that either party will be able to obtain its evidence,
regardless of the forum. The Court will therefore focus on the convenience of obtaining
that evidence.

Most of the evidence is documentary. All of the evidence in the United

States—records regarding design and certification of the aircraft and the prior Detroit
accident and investigation—are documentary. Most of the Spain evidence is
documentary, too, with the notable exception of the accident site, aircraft wreckage,
flight data and cockpit voice recorders, and recordings of air traffic/ground control
communications. Although documentary evidence is relatively easily portable given
modern technology, documents’ “physical location remains a pertinent consideration.”
Sarandi v. Breau, No. 08-2118, 2009 WL 2871049, at *7 (N.D. Cal. Sept. 2, 2009).
However, the documents’ location is “not a compelling consideration,” especially
because documentary evidence is present in both fora. See Medisim Ltd. v. BestMed
LLC, No. , 2010 WL 2697073, at *2 (S.D.N.Y. July 7, 2010) (“The location of
documents . . . is not a compelling consideration when records are easily portable.”
(internal quotations omitted)).

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To be sure, the U.S.-based documents are in large part technical, and technical

documents are harder and costlier to translate. However, any inconvenience in
translating the technical data is more than offset by the drawbacks associated with
translating the cockpit voice recording. As Defendants’ representative attested,
transcripts of a cockpit voice recording are helpful, “but they are no substitute for
listening to the audio recording of those words and their inflection and tone in the
context of cockpit sounds.” (Dodt Decl. ¶ 19.) This is particularly true given that
Defendants seek to establish, among other things, that the pilots failed to perform
required checks or to respond to other warnings. Thus, what happened in the cockpit
immediately before the crash is of central importance. Voice recordings lose far more in
translation than do documents containing technical data.

In sum, material evidence is present in both the U.S. and Spain, and almost all

evidence is obtainable in both locations. Although it may be more complicated to
translate U.S.-based technical data regarding design and certification into Spanish, that
inconvenience is more than offset by the inability of U.S.-based factfinders to actually
listen to what happened in the cockpit before the crash. The access to physical evidence
factor accordingly slightly favors dismissal.

4. Enforceability of the Judgment

Defendants have stipulated to “satisfy any final, post-appeal judgment awarded
against them in Spain.”6 (Winter Decl. ¶ 2.) The enforceability of the judgment factor is
therefore at least neutral. See Van Schijndel, 434 F. Supp. 2d at 779 (concluding that
enforceability of judgment factor was “at least neutral” where Defendants agreed to pay
any final, post-appeal judgment awarded against them by foreign court).

6 Plaintiffs object that this promise is illusory because the judgments might not be collectable
when they become final, likely decades in the future. (Opp. at 21.) For the reasons set forth
above, Plaintiffs’ predictions about the likely duration of proceedings in Spain are unpersuasive,
and this objection accordingly fails.

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5. Other Practical Problems

The Court must next consider two additional “practical problems” that could
weigh in favor of or against allowing the suits to go forward in the U.S. On the one
hand, Plaintiffs contend that they face serious financial impediments to suing in Spain
because contingency fee arrangements are uncommon and because they could be liable
to pay Defendants’ costs, including attorneys’ fees. (Opp. at 21.) On the other hand,
Defendants argue that proceeding in this forum would prejudice them because they could
not join Spanair as a third-party defendant. (Mem. at 17.) The Court addresses each of
these “practical problems” in turn.

a. Plaintiffs’ Financial Impediments to Suit in Spain

A party’s claim of financial hardship can be “a factor to be considered in the
balancing of interests that bear on convenience.” Wilson v. Island Seas Investments,
Ltd., 590 F.3d 1264, 1271–72 (11th Cir. 2009) (quoting Gross v. British Broad. Corp.,
386 F.3d 224, 231 (2d Cir. 2004)). Plaintiffs contend that they face “serious financial
impediments” to bringing suit in Spain because of the potential liability for Defendants’
attorneys’ fees and the lack of access to contingency fee arrangements.

As to the potential liability for Defendants’ attorneys’ fees, the Court is

persuaded by a Seventh Circuit opinion holding that the availability of fee-shifting in the
alternative forum does not qualify as a significant private interest factor weighing against
dismissal. See In re Factor VIII or IX Concentrate Blood Prods. Litig., 484 F.3d 951,
958 (7th Cir. 2007). As the Seventh Circuit explained, the Supreme Court in Piper
Aircraft held that an unfavorable change in law cannot significantly weigh in favor of
dismissal under the forum non conveniens doctrine. Id. The possibility of fee-shifting is
“[o]bviously . . . less favorable to plaintiffs whose chances of losing are too great . . . ,
but we believe that must be regarded as the kind of unfavorable difference in legal
system that carries little weight.” Id. Because the United States “stands almost alone” in
requiring each side to bear its own attorneys’ fees, finding the possibility of fee-shifting
in a foreign forum to weigh significantly against dismissal “would risk gutting the

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doctrine of forum non conveniens entirely.” Id. For this reason, Plaintiffs’ potential
liability for Defendants’ attorneys’ fees in Spain does not weigh against dismissal here.

This Court similarly concludes that the relative unavailability of contingency fee
arrangements in Spain does not counsel against dismissal. As with fee-shifting, the U.S.
is an outlier on contingency fee arrangements. See Coakes v. Arabian Am. Oil Co., 831
F.2d 572, 576 (5th Cir. 1987) (“[C]ontingency fees are not allowed in most forums.”)
Thus, if the unavailability of contingency fee arrangements weighed against dismissal, it
would likely weigh against dismissal in every case. This factor therefore does not
deserve “substantial weight” in the balancing. See Magnin v. Teledyne Cont’l Motors,
91 F.3d 1424, 1430 (11th Cir. 1996).

Further, Plaintiffs have argued only that they will face “serious financial

impediments.” (Opp. at 21.) Notably, they have not argued, or pointed to any evidence,
that these financial impediments will be prohibitive. Particularly in the absence of such
evidence, the Court concludes this factor weighs at most only slightly against dismissal.

b. Defendants’ Inability to Join Spanair in the U.S.

Courts have consistently found a defendant’s inability to implead other parties
potentially responsible for an air crash to be a significant factor favoring dismissal. In
Piper Aircraft, the Supreme Court held that the defendants’ inability to join potential
third-party defendants, including the pilot and the owners and operators of the aircraft,
counseled in favor of dismissal. See Piper, 454 U.S. at 259. Although the defendants
could seek contribution or indemnification from those potential defendants in a second
suit in the foreign forum if they were held liable in the U.S. forum, “[i]t would be far
more convenient . . . to resolve all claims in one trial.” Id. Following Piper, courts have
found defendants’ inability to implead potential third-party defendants a significant
factor favoring dismissal. See Van Schijndel, 434 F. Supp. 2d at 780; Gambra v. Int’l
Lease Fin. Corp., 377 F. Supp. 2d 810, 823 (C.D. Cal. 2005) (“[T]he fact that [the
airline] cannot be compelled to appear as a defendant in the United States is a substantial
consideration weighing in favor of dismissal.”). As the Eleventh Circuit explained, these

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circumstances are prejudicial because an airplane manufacturer’s defense that other
entities were responsible for a crash “is surely less persuasive when aimed at a set of
empty chairs.” Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1284 n.4 (11th Cir.
2001). As another court has explained, “as a practical matter, the trier of fact cannot be
expected to evaluate fairly the relative liability of parties not present at the trial.” Nai-
Chao v. Boeing Co., 555 F. Supp. 9, 19 (N.D. Cal. 1982).

Defendants argue that they would be prejudiced by the absence in this forum of
other parties potentially responsible for the accident, most notably Spanair. Plaintiffs do
not challenge this in theory, but rather dispute the premise of the argument, arguing that
Spanair could be joined in this action. (Opp. at 11.) In particular, Plaintiffs contend that
Spanair has an office in the U.S., operates flights in and out of Philadelphia, and has
availed itself of U.S. Courts, including filing one suit in this Court. (Opp. at 11.)
Plaintiffs’ argument does not hold water. The evidence submitted in support shows that
Spanair lists an office in Washington, D.C. (Docket No. 267, App., Ex. R.) Even if
Spanair did maintain an office in D.C. and operate flights in and out of Philadelp