Where Should Plane Crash Cases Land?

A planeload of would-be vacationers boards a jet bound for Hawaii on a cold winter's day in Chicago. Nearly an hour after the plane is in the air, an engine fails. Communication with air traffic control is lost. The plane crashes in a burst of flames, killing all 271 aboard in a neighboring state.

Passengers from several Midwestern states boarded that flight. Another flight from New York linked up many passengers from the East Coast. All told, they hailed from 18 different states.

The airlines' headquarters is in the South, the plane's manufacturer is in the West and the airline design company is in yet another Midwest state. All of them carry on substantial business in at least a dozen more states.

Although this case is a fictional one, the factual scenario could describe many actual commercial airline crashes.

Litigating mass air disaster cases is a challenging area of law with one of the first questions being a choice of venue. Certainly, the possibilities of where to sue may be as broad as the United States itself; but a mere choice in venue is not as daunting, nor as different, as it may appear at first blush.

If each plaintiff's attorney were to choose the forum most favorable to his or her client, many would chose the same state, given that that issue is the same for all of the passengers involved. Even if different states were selected, the plaintiff's choice of forum should be respected.

But a movement is afoot by the defense bar to cut off a plaintiff's access to state court and advocate exclusive federal jurisdiction in these cases, a forum generally perceived as a more favorable to the defendant and less convenient to the plaintiff. State procedural law is often perceived as less onerous for plaintiffs than the Federal Rules of Civil Procedure.

Such a proposal that wholly pre-empts a field typically under the purview of state law defies traditional notions of American federalism and the coexistence of separate state and federal judiciaries.

When a plane crashes, the cases filed are generally wrongful death, personal injury or product liability claims - statutory and common law issues that historically are dealt with by the state courts.

Litigating in a state court provides procedural advantages when the court will be applying its own law in that it promotes fairness. The possibility that a federal court will misapply or misinterpret the controlling law is minimized, particularly when the case is one of first impression. A plaintiff should not be left with the suspicion that his recovery was affected through a court's error in guessing at how another court would have ruled.

To expand federal jurisdiction to embrace all multistate, multiparty cases involving state law would aggravate the already overburdened condition of the federal courts. In addition, the introduction of more questions of state law into federal court could only serve to distract the federal judiciary from achieving its main purpose - the interpretation and enforcement of federal law.

Litigation in a state forum is desirable in tort lawsuits, in particular, because these deal with fields of law with which state court judges are most familiar. Federal judges are often forced to resort to the time-consuming process of certifying legal questions from a court of another jurisdiction to the highest court of another state.

Furthermore, removal of lawsuits to federal court can lead to inconsistent rulings from various state courts on the same plane crash, a particularly exasperating ordeal when state courts provide appropriate and attractive forums for multistate cases.

Certainly, the last several decades have borne witness to an upheaval in procedural law of private interstate disputes. Nowhere have these dramatic changes been more evident than in aviation disputes.

But, too often the changes have unnecessarily undermined the established separate and independent authority of the state judiciary. The plaintiff's bar must continue to vigorously challenge defense attorneys' efforts to expand the federal role in state court disputes.

Not only must a plaintiff be allowed to have access to all courts that have sufficient contacts with the controversy, but maintaining a proper balance of authority between the federal and state judiciaries while promoting beneficial use of state judicial procedures and resources is vital in handling these complex, precedent-setting cases.