Honorable Robert W. Kastenmeier, Chairman November 22, 1989 We do not believe that H.R. 3406 represents an efficient or a fair allocation of responsibility between state and federal courts for resolution of claims arising from mass disasters and would oppose enactment of the bill. Sincerely, Samuel A. Brunelli Samuel A. Brunelli CC: Congressman Robert W. Kastenmeier Congressman Howard L. Berman Congressman John Bryant Congressman Benjamin L. Cardin Congressman Rick Boucher Congressman George E. Sangmeister Congressman William J. Hughes Congressman Mike Synar Congressman Carlos J. Moorhead Congressman Howard Coble Congressman D. French Slaughter, Jr. Congressman Hamilton Fish, Jr. Congressman Jim Sensenbrenner, Jr. In my letter to you of November 21, 1989, I noticed that in the last sentence of the second paragraph, I inadvertently left out the word "not". That last sentence should read as follows: "I submit that this bill should not be I apologize for this error and hope it has not caused any inconvenience. I am a practitioner with the District of Columbia law firm of Gilman, Olson & Pangia specializing in mass disaster litigation representing plaintiffs. My firm and I have represented numerous individuals in mass air disasters for almost a decade; before that I defended the United States in mass air disasters cases. I am most interested in what your Subcommittee has done with H.R. 3406 and have tried to read the bill from as neutral a position as I could. From my reading of the bill, I believe that a stronger emphasis should be placed on the practical and Constitutional consequences of this radical legislation. This bill has negative as well as positive implications for practicing mass disaster attorneys, their clients and the relationship between federal and state interests. I suggest that further analyses of the bill will disclose the need for important, necessary changes. submit that this bill should be reported out as written. H.R. 3406 has one notable benefit. In the real world of mass disaster litigation, nationwide subpoena power could be a tremendous benefit both to the parties and the finder of fact. Important and crucial facts are now often presented by a cold, artificial reading of deposition transcripts or a videotaped deposition of the witness taken months or years before trial when the trial issues and strategies were only partially developed. The most difficult job now is to keep everyone awake despite the importance of the testimony. The ability to compel such important and crucial testimony live would assist the trial process considerably. The basic premise of H.R. 3406 to bring similar actions arising from the same "mass" disaster into one courtroom for resolution is commendable, although as a practical matter, this capability is presently available under 28 U.S.C. §§ 1407 and 1404. Binding mass disaster liability determinations can already be made through collateral estoppel, precluding at least the defendants from relitigating matters once litigated and determined by a plenary adjudication given full faith and credit under our laws. One problem under H. R. 3406 is that a federal court could even dictate what happens between a plaintiff and defendant who are both citizens of the same state and yet are forced to accept substantive law which has no relevance to either of them. Furthermore, if a state wishes to permit litigation in its own courts against its own citizens regardless of where the mass disaster occurred, this state interest and its "sovereignty" to do so could be subverted by federal removal under H.R. 3406 and imposition of the federal rule on forum non conveniens. a result may or may not have been contemplated by the Subcommittee, but I believe that the obvious potential for subversion of this important state interest should not be lightly swept away in the name of judicial economy and efficiency. Such Many jurisdictions, including the United States through its Federal Tort Claims Act (28 U.S.C.§§2671-2680), have abandoned the mechanical choice of law in tort cases which looks solely to the place of the injury (lex loci delicti) to determine the substantive law to be applied. Of course, there was rarely any doubt that both parties had significant contacts with the place of the injury since one side was injured there and the other side had to be there to cause the injury. However, in our increasingly mobile society, this inflexible rule makes little sense when many locations are merely adventitious in their relationship to the parties, having no significant bearing on the parties or their expectations. The best example of this may be a commercial aviation crash involving a transcontinental flight where most of the overflown states have little or no interest in the welfare or relationships of the parties and may only have the single contact of the location where the aircraft final impacted the ground. The courts have devised the concept of dépeçage, an issueby-issue approach to choice of law, in order to seek fair, reasonable and Constitutional results in choice of law matters. In re Air Crash Disaster at Washington, D.C. on January 13, 1982, 559 F.Supp. 333 (D.D.C. 1983); see also Allstate v. Insurance Co. v. Haque, 449 U.S. 302 (1981). H.R. 3406 appears to limit the substantive choice of law to a single jurisdiction rather than the enlightened dépeçage approach to the multiple issues usually presented in a mass disaster. One can easily envision a mass disaster court always choosing, by necessity, the law of the place of the injury and avoiding the "better" law because the place of the injury provides the only law of a single jurisdiction that presents significant contacts with the parties regardless of their relationships and expectations. Such a result, I submit, is turning back the clock 35 years when courts were trying to overcome the injustices created by the doctrine of lex loci delicti. Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E. 2d 279 (1963). The present procedural rules in mass disasters leave much to be changed, but I believe that H.R. 3406 creates more potential problems than it solves. More study is in order. A thorough examination of the practical and Constitutional impact of this radical departure from present mass disaster procedures could result in an even better informed Subcommittee and a more effective bill. |