IN RE AIR CRASH DISASTER NEAR CHICAGO

MDL No. 391

500 F. Supp. 1044 (1980) | Cited 0 times | N.D. Illinois | May 29, 1980

MEMORANDUM OPINION

This cause is before the Court on the Motion of defendantsAmerican Airlines, Inc. and McDonnell Douglas Corporation tostrike all pending claims for punitive damages for wrongful deathby plaintiffs in these consolidated actions.1 The presentmotion concerns only punitive damages incident to wrongful deathclaims, and does not concern punitive damages ancillary to claimsfor property damage, personal injury or other claims. For thereasons stated, the motion is granted in part and denied in part.

The relevant facts for the purposes of this motion areprimarily undisputed. The crash and consequent deaths occurred inIllinois. Plaintiffs and their decedents were and are residentsof California, Connecticut, Hawaii, Illinois, Indiana,Massachusetts, Michigan, New Jersey, New York, Puerto Rico, andVermont, as well as Japan, the Netherlands and Saudi Arabia. Atthe time of the crash, American Airlines, Inc. [hereinafterreferred to as American], a Delaware corporation, had itsprincipal place of business in New York. In August 1979, Americanmoved its principal place of business to Texas. At the time ofthe crash, American's operations base was in Texas, and itsmaintenance department was headquartered in Oklahoma. DefendantMcDonnell Douglas Corporation [hereinafter referred to as MDC],a Maryland corporation, had its principal place of business inMissouri. The DC-10 aircraft was designed and built by MDC inCalifornia.

Defendant MDC argues that this Court should apply the law ofIllinois, the place of the injury, to all actions, and thatIllinois law does not allow punitive damages. Defendant Americanargues that the law of Illinois should be applied to actionsoriginally filed in Illinois and Michigan, and that of New Yorkshould be applied to actions originally filed in New York andCalifornia. American contends that neither Illinois nor New Yorkpermits punitive damages in a wrongful death action.

The plaintiffs take various positions. Some contend that theconflict of law rules of all the forum states require us to applythe law of defendants' principal place of business or the law ofthe state where the alleged wrongful conduct occurred. Otherplaintiffs, notably those from Michigan and Hawaii, assert thatthe conflict of law rules of those forums require the Court toapply the law of the plaintiff's domicile. All plaintiffs contendthat under the applicable state law, punitive damages arerecoverable in a wrongful death action. Additionally, plaintiffscontend that to deny punitive damages in wrongful death actions,while permitting them in personal injury actions, violates theequal protection clauses of the United States Constitution, andthe Illinois, California and Michigan state constitutions.

CONFLICTS OF LAWS

Since the jurisdiction of this Court is based on diversity ofcitizenship, we must apply the choice of law rules of the statewhere the actions were originally filed. Klaxon Co. v. StentorElectric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477(1941); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11L.Ed.2d 945 (1964). Therefore, we will consider the choice of lawrules of Illinois for actions originally filed in Illinois, andthe choice of law rules of California, Michigan, New York, PuertoRico and Hawaii for actions originally filed in thosejurisdictions. We have already decided that the liability inthese actions is to be determined under Illinois law, andcompensatory damages probably are to be governed bythe law of the domicile of the plaintiffs or their decedents. InRe Air Crash Disaster Near Chicago, Illinois, 480 F. Supp. 1280(N.D.Ill. 1979). However, the conflict of law rules require adifferent result as to punitive damages.

ACTIONS FILED IN ILLINOIS

Illinois courts apply the "most significant relationship" testof the Restatement (Second) of Conflict of Laws to determine theapplicable law in a tort action. Ingersoll v. Klein, 46 Ill.2d 42,262 N.E.2d 593 (1970). Under this test, four "contacts"generally are considered most important in determining which lawapplies: (1) the place of the injury; (2) the place where theconduct causing injury occurred; (3) the domicile, residence,nationality, place of incorporation, and place of business of theparties; and (4) the place where the relationship, if any, of theparties is centered. Ingersoll, supra, at 47-48. Illinois courtsconsider the purpose of the tort rule involved when determiningthe relative importance of the various contacts to the issueunder consideration.

The first and second factors are considered significant wherethe issue concerns the defendant's adherence to standards ofconduct. The state in which the conduct occurred and the state ofinjury have the greatest interest in regulating behavior withintheir jurisdictions. In the present case, the state in which thewrongful conduct occurred and the state of injury are different.The conduct which allegedly caused the injury, American'simproper maintenance of its airplane and MDC's faulty design andconstruction of the plane, presumably occurred in Oklahoma andCalifornia, respectively, although this is not entirely clear.The accident, however, occurred in Illinois. Leschkies v. PlayboyClub of Lake Geneva, Inc., 465 F. Supp. 80 (N.D.Ill. 1979); Kramerv. McDonald Systems, Inc., 61 Ill.App.3d 164, 19 Ill.Dec. 21,378 N.E.2d 522 (1976); Jackson v. Miller-Davis, 44 Ill.App.3d 611, 3Ill.Dec. 161, 358 N.E.2d 328 (1st Dist. 1976); See Restatement,§ 146, comments d and e.

Where, as here, the conduct causing injury occurs in a stateother than that in which the injury occurred, the importance ofthe place where the conduct occurred increases. The purpose ofpunitive damages is to punish and deter wrongdoing. Sibley v.KLM-Royal Dutch Airlines, 454 F. Supp. 425 (S.D.N.Y. 1978);Jackson v. Koninklijke Luchtvaart Maatschappij N.V., 459 F. Supp. 953 (S.D.N.Y. 1978). The state in which the wrongdoing actuallyoccurred has a greater interest than the state where the effectof the wrongdoing fortuitously manifested itself. SeeRestatement, § 146, comment e.

The third factor, the defendant's principal place of business,is also important where the issue is what state's law governs theavailability of punitive damages. A state's purpose in grantingpunitive damages is to insure residents' compliance withstandards of conduct; a state's purpose in denying punitivedamages is to limit the liability of its domiciliaries in tortactions. Forty-Eight Insulations v. Johns-Manville Products,472 F. Supp. 385 (N.D.Ill. 1979); Pancotto v. Sociedade de Safaris deMocambique, S.A.R.I., 422 F. Supp. 405 (N.D.Ill. 1976). Bothpurposes would be served by applying the law of the state of thedefendant's domicile.

In Sibley, supra, and Jackson, supra, the court held that theavailability of punitive damages in cases arising from the crashat Tenerife in the Canary Islands of a Pan American 747 and a KLM747 was governed either by the law of the place of conduct andinjury (Spain), or by the law of the principal place of businessof KLM (Netherlands), neither of which allowed punitive damages.The court recognized that punitive damages are primarily theconcern of the jurisdiction where the conduct occurred or thedefendant's business was located. Denial of punitive damagesreflects that state's concern with protecting the financialinterests of those doing business there and the state ofresidence's concern with avoiding excessive financial burdens onresident persons and corporations. See Jackson, supra, 459F. Supp. at 956.

The fourth factor requires a determination of where therelationship, if any, of the parties is centered. Most of theactions filed in Illinois involve Illinois decedents whopurchased their tickets in Illinois for a flight which began inIllinois. Although these factors indicate that the relationshipbetween the parties is, to some degree, centered in Illinois,this is not significant for the purpose of this motion. Where thetickets were purchased or where the flight began is irrelevant tothe question of the defendants' conduct.

Thus, we conclude that the most significant contacts for thepurposes of this motion are the places where the conduct causinginjury occurred and the states where defendants' principal placesof business are located.

We turn first to the question of what state's law determinesthe availability of punitive damages as far as American isconcerned. At the time of the crash, American's corporateheadquarters and principal place of business was New York.2In August 1979, American moved from New York to Texas. New Yorkclearly does not allow an award of punitive damages in wrongfuldeath actions.3 Robert v. Ford Motor Co., 424 N.Y.S.2d 747(1980); Barrett v. State, 85 Misc.2d 456, 378 N.Y.S.2d 946(Ct.Claims 1976); see also N.Y. Estates, Powers & Trusts Law §5-4.3 (McKinney 1967). Plaintiffs argue that Texas, American'spresent headquarters, is more significant for the purpose of thepunitive damage issue because New York has no interest inshielding a former resident from excessive financial burdens.

In a similar case, Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d734 (1968), the New York court found that a defendant who movedfrom Maine to New York shortly after an automobile accident inMaine involving a New York resident, should be considered a NewYork resident for the purpose of determining the applicable law.In that action, however, the defendant had previously resided inNew York for a substantial period of time prior to a shortresidence in Maine, and application of the Maine law would havelimited the compensatory damages recoverable by the New Yorkresident.

We conclude that policy considerations support finding NewYork, American's principal place of business at the time of thecrash, determinative. A corporate move during lengthy litigationis not uncommon, but the move should not affect the substantivelaw to be applied in that litigation. Although in this action,American moved to a jurisdiction where the law arguably wouldincrease its potential liability, the opposite situation mightalso occur. It would be clearly inequitable to allow a defendantto diminish the rights of the plaintiff through moving corporateheadquarters, however legitimately, at some point after theinjury occurred. We will, therefore, consider New York therelevant principal place of business for defendant American.

Where, as here, the law of the principal place of businessconflicts with that of where the particular conduct (maintenance)occurred, we conclude that the former should prevail.Responsibility for corporate conduct in the form of punitivedamagesshould be uniform regardless of where the particular operationtook place. American provides an excellent example of theconfusion that a different rule would cause where, as is nowcommon practice, a corporation chooses to locate differentoperations in various jurisdictions. American maintained itscorporate headquarters in New York, its operations base in Texas,its maintenance department in Oklahoma, and conducts businessthroughout the country. Application of the law where theallegedly wrongful conduct occurred would require extensiveexamination of the particular employees and operations involved,as well as varying rules depending upon the particular type ofconduct involved. It might also be necessary to determine thelocations of the employees or corporate officers primarily orultimately responsible for the conduct in question.4 In theinstant case, it might well involve maintenance performed in morethan one state.

The most significant relationship test seeks to determine theapplicable law in accordance with set principles in order toachieve certainty, predictability, and uniformity of result.Restatement, § 6. This result is best achieved by placing theresponsibility for corporate conduct at the corporateheadquarters where, as in the case of punitive damages, thepurpose of the tort rule is to punish or deter wrongful conduct,or to regulate the financial burdens on resident persons orcorporations. As previously stated, New York does not allowpunitive damages in wrongful death actions. See page 8, supra.

We turn now to the question of what law applies to MDC. MDCmaintains its principal place of business in Missouri, while theDC-10 aircraft was designed and built in California. The conductof MDC in question involves alleged defective design andmaintenance instructions regarding the DC-10 aircraft. For thereasons previously stated, we will apply the law of MDC'sprincipal place of business, Missouri, to the issue of punitivedamages liability.

Missouri does not allow punitive damages per se in wrongfuldeath actions. Glick v. Ballentine Produce, Inc., 396 S.W.2d 609(Mo. 1965). It does, however, provide that the jury in a wrongfuldeath action may be instructed to consider "mitigating oraggravating circumstances attending the death" where there hasbeen a showing of "wilful misconduct, wantonness, recklessness orwant of care indicative of indifference to consequences." VernonAnno.Mo.Stat., § 532.090 (1975); Wiseman v. Missouri PacificR.R., 575 S.W.2d 742 (Mo.Ct.App. 1979). The "aggravatingcircumstances" instruction, while authorizing damages punitive incharacter based on the defendant's conduct, is not consideredpunitive damages by Missouri courts. Glick, supra, 396 S.W.2d at617. Inasmuch as this element of damage is governed bydefendant's conduct, it is appropriately applied in the presentactions.

Therefore, for action filed in Illinois, we will grant themotion to strike claims for punitive damages against defendantAmerican, and deny the motion to strike claims for punitivedamages against defendant MDC.

ACTIONS FILED IN CALIFORNIA

Unlike Illinois, California does not use the "most significantrelationship" test to determine the applicable law in tort cases.California courts first determine whether a true conflict existsby analyzing the interests of the states whose law might apply tothe issue. Reich v. Purcell, 63 Cal.Rptr. 31, 432 P.2d 727, 730(Sup. 1967); Hurtado v. Superior Court, 114 Cal.Rptr. 106,522 P.2d 666, 669-70 (Sup. 1974). California courts recognize thatthere are three separate interests in wrongful death actions.First, the plaintiff's domicile mayhave an interest in the compensation of survivors. Second, thestate of injury may be concerned with deterring wrongful conductand protecting persons within its borders. Third, the defendant'sdomicile may have an interest in limiting residents' liabilityfor damages thereby protecting residents from excessive financialburdens. Hurtado, supra at 672-3.

Where the law of the interested states conflicts as to aparticular issue, the court is to determine the proper law byusing the "comparative impairment" approach. Bernhard v. Harrah'sClub, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976).Under this test, the court determines which state's policy, asreflected by its law, would be more severely affected if it werenot applied. Bernhard, supra at 724.

As to defendant MDC, the two interested jurisdictions are 1)the place where the conduct occurred, California; and 2) theprincipal place of business of the defendant, Missouri.

The interest of California in this action is limited.California courts have traditionally held punitive damages notrecoverable in wrongful death actions. Tarasoff v. Regents ofCalifornia, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334(1976); Pease v. Beech Aircraft Corp., 38 Cal.App.3d 450,113 Cal.Rptr. 416 (1976). Disallowance of punitive damages inwrongful death actions expresses a state policy to avoidexcessive financial burdens on state residents. While MDC hassubstantial operations in California, as well as in Missouri, itis not a resident of that state. Accordingly, we conclude thatCalifornia's interest is less than that of Missouri.

As for defendant American, the court must determine whether thelaws of Oklahoma or New York should apply. Oklahoma allowspunitive damages in wrongful death actions where the defendantacted with "oppression, fraud, or malice." 12 Okla.St.Ann. §1053; 23 Okla.St.Ann. § 9. New York does not allow punitivedamages. As we stated previously, where the law of the principalplace of business conflicts with the place where the particularconduct occurred, generally the former should prevail. Oklahoma'spolicy would not be severely impaired by application of New Yorklaw. Therefore, as to American, we conclude the law of New Yorkapplies to the issue of punitive damages. Accordingly, in theactions filed in California, the motion to strike claims forpunitive damages will be denied as to defendant MDC and grantedas to defendant American.

ACTIONS FILED IN NEW YORK

New York courts apply the "governmental interest" approach indetermining the applicable law in tort cases. Babcock v. Jackson,12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1965); Long v.Pan Am World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513,213 N.E.2d 796 (1965). This test requires the court to determinewhich state has the greatest concern with the specific issueraised because of its relationship or contact with the parties orthe occurrence. Babcock, supra, 12 N.Y.2d at 481. Where there isnothing fortuitous in the fact that the injury occurred in agiven state, New York courts will give great weight to the statewhere the injury occurred. See Belisario v. Manhattan MotorRental, Inc., 370 N.Y.S.2d 574, 48 A.D.2d 477 (1st Dept. 1975);Walkes v. Walkes, 465 F. Supp. 638 (S.D.N.Y. 1979).

As New York courts have recognized, however, air crashdisasters often present situations where the place of injury islargely fortuitous. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34,211 N.Y.S.2d 133, 172 N.E.2d 526 (1961); Gore v. NortheastAirlines, 373 F.2d 717 (2d Cir. 1967). That the injury in thiscase occurred in Illinois can certainly be considered"fortuitous." Under these circumstances, and considering thepurpose of punitive damages, a New York court would hold that thelaw of the principal place of business determines theavailability of punitive damages.

The reasons supporting application of the law of the principalplace of business under California's interest analysis testsupport the same result under New York's governmental interesttest. This is particularly appropriate for defendant Americansince its principal place of business is New York. As todefendant MDC, although New York does not allow punitive damagesin wrongful death actions, New York, like California, has nointerest in protecting a nonresident from financial burdens whichwould be imposed by the state of residence. Therefore, the law ofNew York applies to defendant American, and the law of Missourito defendant MDC in actions filed in New York.

ACTIONS FILED IN MICHIGAN

Michigan, like California, has abandoned the traditional lexloci delicti approach to conflicts questions in favor of the"interests analysis" approach. Sweeney v. Sweeney, 402 Mich. 234,262 N.W.2d 625, 628 (1978); Storie v. Southfield Leasing, Inc.,90 Mich. App. 612, 282 N.W.2d 417, 419 (1979); Branyan v. AlpenaFlying Service, 65 Mich. App. 1, 236 N.W.2d 739, 742 (1976).Application of Missouri and New York law would not frustrate awell-established state policy of Michigan since Michigan hasnever found punitive damages proper in a wrongful death action.Currie v. Fitting, 375 Mich. 440, 134 N.W.2d 611 (1965).

For the reasons stated with regard to the California, Illinois,and New York actions, therefore, we will apply the law ofMissouri as to MDC and New York as to American in actions filedin Michigan. Therefore, the motion to strike will be denied as todefendant MDC and granted as to defendant American.

ACTIONS FILED IN PUERTO RICO AND HAWAII

Puerto Rico applies the traditional lex loci delicti test totort actions. Jimenez Puig v. Avis Rent-A-Car System, 574 F.2d 37(1st Cir. 1978); DeVane v. United States, 259 F. Supp. 18, 20(D.P.R. 1966). As stated earlier, the law of the place of injuryin this case, Illinois, does not permit punitive damages inwrongful death actions. Denying punitive damages here does notfrustrate the public policy of Puerto Rico, since Puerto Ricodoes not allow punitive damages in tort actions. Ganapolsky v.Park Gardens Development Corp., 439 F.2d 844, 846 (1st Cir.1971); Cooperative de Seguros Multiples de Puerto Rico v. SanJuan, 289 F. Supp. 858, 859-60 (D.D.P.R. 1968).

As for actions originally filed in Hawaii, neither plaintiffsnor defendants have discussed the conflicts rules of Hawaii andwe have been unable to determine from our research how Hawaiiwould approach a conflicts question of this sort. Nevertheless,as to defendant American, under any of the conflicts rulespreviously discussed, interest analysis (California),governmental interest (New York), or most significantrelationship (Illinois), the law of New York applies and punitivedamages are not available. Under the traditional lex loci delictitest, Illinois law applies, and punitive damages also are notavailable. Therefore, all pending claims for punitive damagesagainst defendant American will be stricken in actions filed inHawaii.

As previously stated, under some conflicts rules, defendant MDCcan be held responsible for punitive-type damages. Therefore, themotion to strike as to defendant MDC will be denied.

CONSTITUTIONAL OBJECTIONS

Several plaintiffs argue that preclusion of punitive damages inwrongful death actions, where they are permitted in personalinjury actions, is a violation of the equal protection clause ofthe federal and Illinois, Michigan, and California constitutions.In addition, some plaintiffs argue that this differentiationconstitutes "special legislation" in violation of Art. 4, § 13 ofthe Illinois state constitution. Ill.Const. Art. 4, § 13 (1970).Defendants obviously take the opposite view.

We conclude that a denial of punitive damages in wrongful deathactions does not violate the equal protection clause of theUnited States Constitution. Huff v. White Motor Corp.,609 F.2d 286 (7th Cir.1979); Johnson v. International Harvester Corp., 487 F. Supp. 1176(D.N.D. 1980); In Re Paris Air Crash Disaster, 427 F. Supp. 701(C.D. 1977). Limitations on damages in wrongful death actions,where they are not limited to personal injury actions, have beenheld constitutional by the majority of courts to consider thequestion. Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974);Mitseff v. Acme Steel Co., 208 F. Supp. 805 (N.D.Ill. 1962); Glickv. Ballentine Produce, Inc., supra, appeal dis'd 385 U.S. 5(1966); Butler v. Chicago Transit Authority, 38 Ill.2d 361,231 N.E.2d 429 (1967).

Denial of punitive damages in wrongful death actions is not "sounrelated to the achievement of any combination of legislativepurposes that . . . [the court] can only conclude that thelegislature's actions were irrational." Parham v. Hughes,441 U.S. 347, 352, 99 S.Ct. 1742, 1746, 60 L.Ed.2d 269 (1979). Thestate has a legitimate interest in the amount and distribution ofdamages to survivors of persons wrongfully killed. A state maydetermine that its interest in maintaining accurate and efficientdisposition of property at death is best served by limitingdamages in these actions to exclude punitive damages. See Parhamat 357, 99 S.Ct. at 1748. Also, the state may believe that anypunishment for wrongful conduct, beyond compensation for thoseinjured or killed, is best handled through state of federalcriminal processes.

For these reasons, we find that a denial of punitive damages inwrongful death actions does not violate the equal protectionclause of the United States Constitution.

The constitutionality under state constitutions of denyingpunitive damages in wrongful death actions must be addressedsince if it is unconstitutional, it might impact on the analysisof the conflicts rules of these jurisdictions.

The equal protection clauses of the Michigan and Illinoisconstitutions are coextensive with that of the federalconstitution. See Friedman & Rochester, Ltd. v. Walsh, 67 Ill.2d 413,10 Ill.Dec. 559, 367 N.E.2d 1325 (1977); Commissioners ofHighways of Town of Annawan v. U.S., 466 F. Supp. 745, 769(N.D.Ill. 1979); Moore v. Spangler, 401 Mich. 360, 258 N.W.2d 34(1977). For the reasons stated with respect to the federalconstitution, therefore, the unavailability of punitive damagesin these actions does not violate the Illinois or Michiganconstitutional protections.

The California equal protection clause, while fundamentallyequivalent to that of the federal constitution, requires "somerationality" in the nature of the class singled out." Brown v.Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973);Serrano v. Priest, 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929(1976). There obviously is a rational distinction between thedamages of persons injured in accidents who survive anddescendants or heirs of persons killed in accidents. There is nosubstantial difference between not allowing damages for pain andsuffering or nature and extent of the injuries in death actionsand not allowing punitive damages. The decisions of the courtsand legislatures to preclude recovery of punitive damages inwrongful death actions fulfills this requirement. See contra InRe Paris Air Crash, supra.

Finally, the special legislation clause of the Illinoisconstitution must be considered. Art. 4, section 13 of theIllinois constitution provides: "The General Assembly shall passno special or local law when a general law is or can be madeapplicable. . . ." Plaintiffs argue that the judicialconstruction of the wrongful death statute to preclude punitivedamages is a special law violative of this provision since thecommon-law right to punitive damages can be made applicable towrongful death actions.

This contention ignores the fact that other statutes inIllinois expressly providing that punitive damages may not berecovered have been upheld against challenges that theyconstitute "special legislation". Smith v. Hill, 12 Ill.2d 588,147 N.E.2d 321 (1958) (upholding ban on punitive damages inbreach of marriage promise actions); Siegall v. Solomon,19 Ill.2d 145, 166 N.E.2d 5 (upholding ban on punitive damages inalienation of affections action).Further, the "special legislation" prohibition only requires thatthe law operate alike in all places and upon all persons in likecircumstances within the state. Adams v. Continental Cas. Co.,21 Ill. App.3d 111, 314 N.E.2d 495 (1974); Rincon v. License AppealCommission of City of Chicago, 62 Ill.App.3d 600, 19 Ill.Dec.406, 378 N.E.2d 1281 (1978); Friedman & Rochester, Ltd. v. Walsh,supra.

CONCLUSION

The inconsistency of finding punitive damages available againstone defendant and not the other is compelled by differences inthe various states' conflict of law and punitive damages rulesand reflects the problems inherent in the application of statelaw to activities of national scope, such as those of the airlineindustry. Airlines and airplane manufacturers are subject touniform federal regulation in almost every aspect of theiroperations, except their tort liability.

As recently as 1978, a bill was introduced in Congress toestablish a federal cause of action for injuries suffered throughaviation activity. See H.R. 10917, 124 Cong.Rec. No. 17 (February14, 1978). If this bill, or any of its predecessors had passed,those actions would all be governed by federal law, uniform as toliability and damages, rather than by the varying laws of anumber of states. See Note, 28 Vand.L.Rev. 621, 625 (1975). It istime that this important area of federal concern be addressed bythe Congress to prevent substantial and incongruous variations inliability and damages determinations based on identical conductsolely because of differences in state conflicts of lawprinciples and underlying tort law. It is clearly in theinterests of passengers, the airlines, and the airplanemanufacturers, as well as the state and federal governments, thatthis national activity be governed by uniform principles offederal law.

One final observation is appropriate. Notwithstanding all ofthe foregoing, it remains to be determined whether or not theevidence as to the conduct of MDC will warrant the submission ofany issue of punitive damages to the jury. That questionobviously cannot be answered until a trial on the issue ofliability.

For the reasons stated, the motion of defendant McDonnellDouglas Corporation to strike all pending claims for punitivedamages in the wrongful death actions before the court will bedenied as to all actions, except those originally filed in PuertoRico. The motion of defendant American Airlines to strike allpending claims for punitive damages in the wrongful death actionsbefore the court will be granted as to all actions.

Because the availability of punitive damages against eitherdefendant may control and effect the scope of discovery of thisaction, and in the opinion of the court, an immediate appeal fromthis order will materially advance the ultimate termination ofthis litigation, this matter will be certified pursuant to28 U.S.C. § 1292(b) for immediate appeal.

An appropriate order will enter.

1. Some plaintiffs contend that the motion is more properlyconsidered as a motion to dismiss for failure to state a claimunder F.R.Civ.P. 12(b)(6) since motions to strike under Rule12(f) must be filed within certain time limits. However,F.R.Civ.P. 12(f) provides that a court may consider a motion tostrike at any time.

2. At the time of the crash, American's center of operations wasin Texas. Plaintiffs argue that courts have applied the"operations center" test to determine the principal place ofbusiness for carriers such as American. Herschel v. EasternAirlines, Inc., 216 F. Supp. 347 (S.D.N.Y. 1963); Clothier v.United Airlines, Inc., 196 F. Supp. 435 (E.D.N.Y. 1961). Thesecases, involving determination of diversity, are not applicableto the present situation. Further, as American indicates, thiscircuit applies the "nerve center" test to determine diversityissues. Celanese Corp. of America v. Vandalia Warehouse Corp.,424 F.2d 1176 (7th Cir. 1970). To the extent that this diversitytest applies to a determination of the conflicts issues,therefore, it indicates that New York law should be applied.

3. Texas would allow punitive damage recovery by spouses ordescendants in a wrongful death action. Tex.Const. Art. 16, §26 (1975). See also Scoggins v. Southwestern Elec. Service Co.,434 S.W.2d 376 (Tex.Civ.App. 1968); Pace v. McEwen, 574 S.W.2d 792(Tex.Civ.App. 1978).

4. The clear trend of decisions is to hold a corporationresponsible for punitive damages only where corporate officers or"management" participated or acquiesced in unlawful conduct. SeeDoralee Estates, Inc. v. Cities Service Oil Co., 569 F.2d 716(1st Cir. 1977); Jackson v. Koninklijke Luchtvaart Maatschappij,N.V., 459 F. Supp. 953 (S.D.N.Y. 1978); Oakview New Lenox Schoolv. Ford Motor Co., 61 Ill.App.3d 194, 378 N.E.2d 544, 19 Ill.Dec.43 (3d Dist. 1978).

MEMORANDUM OPINION

This cause is before the Court on the Motion of defendantsAmerican Airlines, Inc. and McDonnell Douglas Corporation tostrike all pending claims for punitive damages for wrongful deathby plaintiffs in these consolidated actions.1 The presentmotion concerns only punitive damages incident to wrongful deathclaims, and does not concern punitive damages ancillary to claimsfor property damage, personal injury or other claims. For thereasons stated, the motion is granted in part and denied in part.

The relevant facts for the purposes of this motion areprimarily undisputed. The crash and consequent deaths occurred inIllinois. Plaintiffs and their decedents were and are residentsof California, Connecticut, Hawaii, Illinois, Indiana,Massachusetts, Michigan, New Jersey, New York, Puerto Rico, andVermont, as well as Japan, the Netherlands and Saudi Arabia. Atthe time of the crash, American Airlines, Inc. [hereinafterreferred to as American], a Delaware corporation, had itsprincipal place of business in New York. In August 1979, Americanmoved its principal place of business to Texas. At the time ofthe crash, American's operations base was in Texas, and itsmaintenance department was headquartered in Oklahoma. DefendantMcDonnell Douglas Corporation [hereinafter referred to as MDC],a Maryland corporation, had its principal place of business inMissouri. The DC-10 aircraft was designed and built by MDC inCalifornia.

Defendant MDC argues that this Court should apply the law ofIllinois, the place of the injury, to all actions, and thatIllinois law does not allow punitive damages. Defendant Americanargues that the law of Illinois should be applied to actionsoriginally filed in Illinois and Michigan, and that of New Yorkshould be applied to actions originally filed in New York andCalifornia. American contends that neither Illinois nor New Yorkpermits punitive damages in a wrongful death action.

The plaintiffs take various positions. Some contend that theconflict of law rules of all the forum states require us to applythe law of defendants' principal place of business or the law ofthe state where the alleged wrongful conduct occurred. Otherplaintiffs, notably those from Michigan and Hawaii, assert thatthe conflict of law rules of those forums require the Court toapply the law of the plaintiff's domicile. All plaintiffs contendthat under the applicable state law, punitive damages arerecoverable in a wrongful death action. Additionally, plaintiffscontend that to deny punitive damages in wrongful death actions,while permitting them in personal injury actions, violates theequal protection clauses of the United States Constitution, andthe Illinois, California and Michigan state constitutions.

CONFLICTS OF LAWS

Since the jurisdiction of this Court is based on diversity ofcitizenship, we must apply the choice of law rules of the statewhere the actions were originally filed. Klaxon Co. v. StentorElectric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477(1941); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11L.Ed.2d 945 (1964). Therefore, we will consider the choice of lawrules of Illinois for actions originally filed in Illinois, andthe choice of law rules of California, Michigan, New York, PuertoRico and Hawaii for actions originally filed in thosejurisdictions. We have already decided that the liability inthese actions is to be determined under Illinois law, andcompensatory damages probably are to be governed bythe law of the domicile of the plaintiffs or their decedents. InRe Air Crash Disaster Near Chicago, Illinois, 480 F. Supp. 1280(N.D.Ill. 1979). However, the conflict of law rules require adifferent result as to punitive damages.

ACTIONS FILED IN ILLINOIS

Illinois courts apply the "most significant relationship" testof the Restatement (Second) of Conflict of Laws to determine theapplicable law in a tort action. Ingersoll v. Klein, 46 Ill.2d 42,262 N.E.2d 593 (1970). Under this test, four "contacts"generally are considered most important in determining which lawapplies: (1) the place of the injury; (2) the place where theconduct causing injury occurred; (3) the domicile, residence,nationality, place of incorporation, and place of business of theparties; and (4) the place where the relationship, if any, of theparties is centered. Ingersoll, supra, at 47-48. Illinois courtsconsider the purpose of the tort rule involved when determiningthe relative importance of the various contacts to the issueunder consideration.

The first and second factors are considered significant wherethe issue concerns the defendant's adherence to standards ofconduct. The state in which the conduct occurred and the state ofinjury have the greatest interest in regulating behavior withintheir jurisdictions. In the present case, the state in which thewrongful conduct occurred and the state of injury are different.The conduct which allegedly caused the injury, American'simproper maintenance of its airplane and MDC's faulty design andconstruction of the plane, presumably occurred in Oklahoma andCalifornia, respectively, although this is not entirely clear.The accident, however, occurred in Illinois. Leschkies v. PlayboyClub of Lake Geneva, Inc., 465 F. Supp. 80 (N.D.Ill. 1979); Kramerv. McDonald Systems, Inc., 61 Ill.App.3d 164, 19 Ill.Dec. 21,378 N.E.2d 522 (1976); Jackson v. Miller-Davis, 44 Ill.App.3d 611, 3Ill.Dec. 161, 358 N.E.2d 328 (1st Dist. 1976); See Restatement,§ 146, comments d and e.

Where, as here, the conduct causing injury occurs in a stateother than that in which the injury occurred, the importance ofthe place where the conduct occurred increases. The purpose ofpunitive damages is to punish and deter wrongdoing. Sibley v.KLM-Royal Dutch Airlines, 454 F. Supp. 425 (S.D.N.Y. 1978);Jackson v. Koninklijke Luchtvaart Maatschappij N.V., 459 F. Supp. 953 (S.D.N.Y. 1978). The state in which the wrongdoing actuallyoccurred has a greater interest than the state where the effectof the wrongdoing fortuitously manifested itself. SeeRestatement, § 146, comment e.

The third factor, the defendant's principal place of business,is also important where the issue is what state's law governs theavailability of punitive damages. A state's purpose in grantingpunitive damages is to insure residents' compliance withstandards of conduct; a state's purpose in denying punitivedamages is to limit the liability of its domiciliaries in tortactions. Forty-Eight Insulations v. Johns-Manville Products,472 F. Supp. 385 (N.D.Ill. 1979); Pancotto v. Sociedade de Safaris deMocambique, S.A.R.I., 422 F. Supp. 405 (N.D.Ill. 1976). Bothpurposes would be served by applying the law of the state of thedefendant's domicile.

In Sibley, supra, and Jackson, supra, the court held that theavailability of punitive damages in cases arising from the crashat Tenerife in the Canary Islands of a Pan American 747 and a KLM747 was governed either by the law of the place of conduct andinjury (Spain), or by the law of the principal place of businessof KLM (Netherlands), neither of which allowed punitive damages.The court recognized that punitive damages are primarily theconcern of the jurisdiction where the conduct occurred or thedefendant's business was located. Denial of punitive damagesreflects that state's concern with protecting the financialinterests of those doing business there and the state ofresidence's concern with avoiding excessive financial burdens onresident persons and corporations. See Jackson, supra, 459F. Supp. at 956.

The fourth factor requires a determination of where therelationship, if any, of the parties is centered. Most of theactions filed in Illinois involve Illinois decedents whopurchased their tickets in Illinois for a flight which began inIllinois. Although these factors indicate that the relationshipbetween the parties is, to some degree, centered in Illinois,this is not significant for the purpose of this motion. Where thetickets were purchased or where the flight began is irrelevant tothe question of the defendants' conduct.

Thus, we conclude that the most significant contacts for thepurposes of this motion are the places where the conduct causinginjury occurred and the states where defendants' principal placesof business are located.

We turn first to the question of what state's law determinesthe availability of punitive damages as far as American isconcerned. At the time of the crash, American's corporateheadquarters and principal place of business was New York.2In August 1979, American moved from New York to Texas. New Yorkclearly does not allow an award of punitive damages in wrongfuldeath actions.3 Robert v. Ford Motor Co., 424 N.Y.S.2d 747(1980); Barrett v. State, 85 Misc.2d 456, 378 N.Y.S.2d 946(Ct.Claims 1976); see also N.Y. Estates, Powers & Trusts Law §5-4.3 (McKinney 1967). Plaintiffs argue that Texas, American'spresent headquarters, is more significant for the purpose of thepunitive damage issue because New York has no interest inshielding a former resident from excessive financial burdens.

In a similar case, Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d734 (1968), the New York court found that a defendant who movedfrom Maine to New York shortly after an automobile accident inMaine involving a New York resident, should be considered a NewYork resident for the purpose of determining the applicable law.In that action, however, the defendant had previously resided inNew York for a substantial period of time prior to a shortresidence in Maine, and application of the Maine law would havelimited the compensatory damages recoverable by the New Yorkresident.

We conclude that policy considerations support finding NewYork, American's principal place of business at the time of thecrash, determinative. A corporate move during lengthy litigationis not uncommon, but the move should not affect the substantivelaw to be applied in that litigation. Although in this action,American moved to a jurisdiction where the law arguably wouldincrease its potential liability, the opposite situation mightalso occur. It would be clearly inequitable to allow a defendantto diminish the rights of the plaintiff through moving corporateheadquarters, however legitimately, at some point after theinjury occurred. We will, therefore, consider New York therelevant principal place of business for defendant American.

Where, as here, the law of the principal place of businessconflicts with that of where the particular conduct (maintenance)occurred, we conclude that the former should prevail.Responsibility for corporate conduct in the form of punitivedamagesshould be uniform regardless of where the particular operationtook place. American provides an excellent example of theconfusion that a different rule would cause where, as is nowcommon practice, a corporation chooses to locate differentoperations in various jurisdictions. American maintained itscorporate headquarters in New York, its operations base in Texas,its maintenance department in Oklahoma, and conducts businessthroughout the country. Application of the law where theallegedly wrongful conduct occurred would require extensiveexamination of the particular employees and operations involved,as well as varying rules depending upon the particular type ofconduct involved. It might also be necessary to determine thelocations of the employees or corporate officers primarily orultimately responsible for the conduct in question.4 In theinstant case, it might well involve maintenance performed in morethan one state.

The most significant relationship test seeks to determine theapplicable law in accordance with set principles in order toachieve certainty, predictability, and uniformity of result.Restatement, § 6. This result is best achieved by placing theresponsibility for corporate conduct at the corporateheadquarters where, as in the case of punitive damages, thepurpose of the tort rule is to punish or deter wrongful conduct,or to regulate the financial burdens on resident persons orcorporations. As previously stated, New York does not allowpunitive damages in wrongful death actions. See page 8, supra.

We turn now to the question of what law applies to MDC. MDCmaintains its principal place of business in Missouri, while theDC-10 aircraft was designed and built in California. The conductof MDC in question involves alleged defective design andmaintenance instructions regarding the DC-10 aircraft. For thereasons previously stated, we will apply the law of MDC'sprincipal place of business, Missouri, to the issue of punitivedamages liability.

Missouri does not allow punitive damages per se in wrongfuldeath actions. Glick v. Ballentine Produce, Inc., 396 S.W.2d 609(Mo. 1965). It does, however, provide that the jury in a wrongfuldeath action may be instructed to consider "mitigating oraggravating circumstances attending the death" where there hasbeen a showing of "wilful misconduct, wantonness, recklessness orwant of care indicative of indifference to consequences." VernonAnno.Mo.Stat., § 532.090 (1975); Wiseman v. Missouri PacificR.R., 575 S.W.2d 742 (Mo.Ct.App. 1979). The "aggravatingcircumstances" instruction, while authorizing damages punitive incharacter based on the defendant's conduct, is not consideredpunitive damages by Missouri courts. Glick, supra, 396 S.W.2d at617. Inasmuch as this element of damage is governed bydefendant's conduct, it is appropriately applied in the presentactions.

Therefore, for action filed in Illinois, we will grant themotion to strike claims for punitive damages against defendantAmerican, and deny the motion to strike claims for punitivedamages against defendant MDC.

ACTIONS FILED IN CALIFORNIA

Unlike Illinois, California does not use the "most significantrelationship" test to determine the applicable law in tort cases.California courts first determine whether a true conflict existsby analyzing the interests of the states whose law might apply tothe issue. Reich v. Purcell, 63 Cal.Rptr. 31, 432 P.2d 727, 730(Sup. 1967); Hurtado v. Superior Court, 114 Cal.Rptr. 106,522 P.2d 666, 669-70 (Sup. 1974). California courts recognize thatthere are three separate interests in wrongful death actions.First, the plaintiff's domicile mayhave an interest in the compensation of survivors. Second, thestate of injury may be concerned with deterring wrongful conductand protecting persons within its borders. Third, the defendant'sdomicile may have an interest in limiting residents' liabilityfor damages thereby protecting residents from excessive financialburdens. Hurtado, supra at 672-3.

Where the law of the interested states conflicts as to aparticular issue, the court is to determine the proper law byusing the "comparative impairment" approach. Bernhard v. Harrah'sClub, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976).Under this test, the court determines which state's policy, asreflected by its law, would be more severely affected if it werenot applied. Bernhard, supra at 724.

As to defendant MDC, the two interested jurisdictions are 1)the place where the conduct occurred, California; and 2) theprincipal place of business of the defendant, Missouri.

The interest of California in this action is limited.California courts have traditionally held punitive damages notrecoverable in wrongful death actions. Tarasoff v. Regents ofCalifornia, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334(1976); Pease v. Beech Aircraft Corp., 38 Cal.App.3d 450,113 Cal.Rptr. 416 (1976). Disallowance of punitive damages inwrongful death actions expresses a state policy to avoidexcessive financial burdens on state residents. While MDC hassubstantial operations in California, as well as in Missouri, itis not a resident of that state. Accordingly, we conclude thatCalifornia's interest is less than that of Missouri.

As for defendant American, the court must determine whether thelaws of Oklahoma or New York should apply. Oklahoma allowspunitive damages in wrongful death actions where the defendantacted with "oppression, fraud, or malice." 12 Okla.St.Ann. §1053; 23 Okla.St.Ann. § 9. New York does not allow punitivedamages. As we stated previously, where the law of the principalplace of business conflicts with the place where the particularconduct occurred, generally the former should prevail. Oklahoma'spolicy would not be severely impaired by application of New Yorklaw. Therefore, as to American, we conclude the law of New Yorkapplies to the issue of punitive damages. Accordingly, in theactions filed in California, the motion to strike claims forpunitive damages will be denied as to defendant MDC and grantedas to defendant American.

ACTIONS FILED IN NEW YORK

New York courts apply the "governmental interest" approach indetermining the applicable law in tort cases. Babcock v. Jackson,12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1965); Long v.Pan Am World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513,213 N.E.2d 796 (1965). This test requires the court to determinewhich state has the greatest concern with the specific issueraised because of its relationship or contact with the parties orthe occurrence. Babcock, supra, 12 N.Y.2d at 481. Where there isnothing fortuitous in the fact that the injury occurred in agiven state, New York courts will give great weight to the statewhere the injury occurred. See Belisario v. Manhattan MotorRental, Inc., 370 N.Y.S.2d 574, 48 A.D.2d 477 (1st Dept. 1975);Walkes v. Walkes, 465 F. Supp. 638 (S.D.N.Y. 1979).

As New York courts have recognized, however, air crashdisasters often present situations where the place of injury islargely fortuitous. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34,211 N.Y.S.2d 133, 172 N.E.2d 526 (1961); Gore v. NortheastAirlines, 373 F.2d 717 (2d Cir. 1967). That the injury in thiscase occurred in Illinois can certainly be considered"fortuitous." Under these circumstances, and considering thepurpose of punitive damages, a New York court would hold that thelaw of the principal place of business determines theavailability of punitive damages.

The reasons supporting application of the law of the principalplace of business under California's interest analysis testsupport the same result under New York's governmental interesttest. This is particularly appropriate for defendant Americansince its principal place of business is New York. As todefendant MDC, although New York does not allow punitive damagesin wrongful death actions, New York, like California, has nointerest in protecting a nonresident from financial burdens whichwould be imposed by the state of residence. Therefore, the law ofNew York applies to defendant American, and the law of Missourito defendant MDC in actions filed in New York.

ACTIONS FILED IN MICHIGAN

Michigan, like California, has abandoned the traditional lexloci delicti approach to conflicts questions in favor of the"interests analysis" approach. Sweeney v. Sweeney, 402 Mich. 234,262 N.W.2d 625, 628 (1978); Storie v. Southfield Leasing, Inc.,90 Mich. App. 612, 282 N.W.2d 417, 419 (1979); Branyan v. AlpenaFlying Service, 65 Mich. App. 1, 236 N.W.2d 739, 742 (1976).Application of Missouri and New York law would not frustrate awell-established state policy of Michigan since Michigan hasnever found punitive damages proper in a wrongful death action.Currie v. Fitting, 375 Mich. 440, 134 N.W.2d 611 (1965).

For the reasons stated with regard to the California, Illinois,and New York actions, therefore, we will apply the law ofMissouri as to MDC and New York as to American in actions filedin Michigan. Therefore, the motion to strike will be denied as todefendant MDC and granted as to defendant American.

ACTIONS FILED IN PUERTO RICO AND HAWAII

Puerto Rico applies the traditional lex loci delicti test totort actions. Jimenez Puig v. Avis Rent-A-Car System, 574 F.2d 37(1st Cir. 1978); DeVane v. United States, 259 F. Supp. 18, 20(D.P.R. 1966). As stated earlier, the law of the place of injuryin this case, Illinois, does not permit punitive damages inwrongful death actions. Denying punitive damages here does notfrustrate the public policy of Puerto Rico, since Puerto Ricodoes not allow punitive damages in tort actions. Ganapolsky v.Park Gardens Development Corp., 439 F.2d 844, 846 (1st Cir.1971); Cooperative de Seguros Multiples de Puerto Rico v. SanJuan, 289 F. Supp. 858, 859-60 (D.D.P.R. 1968).

As for actions originally filed in Hawaii, neither plaintiffsnor defendants have discussed the conflicts rules of Hawaii andwe have been unable to determine from our research how Hawaiiwould approach a conflicts question of this sort. Nevertheless,as to defendant American, under any of the conflicts rulespreviously discussed, interest analysis (California),governmental interest (New York), or most significantrelationship (Illinois), the law of New York applies and punitivedamages are not available. Under the traditional lex loci delictitest, Illinois law applies, and punitive damages also are notavailable. Therefore, all pending claims for punitive damagesagainst defendant American will be stricken in actions filed inHawaii.

As previously stated, under some conflicts rules, defendant MDCcan be held responsible for punitive-type damages. Therefore, themotion to strike as to defendant MDC will be denied.

CONSTITUTIONAL OBJECTIONS

Several plaintiffs argue that preclusion of punitive damages inwrongful death actions, where they are permitted in personalinjury actions, is a violation of the equal protection clause ofthe federal and Illinois, Michigan, and California constitutions.In addition, some plaintiffs argue that this differentiationconstitutes "special legislation" in violation of Art. 4, § 13 ofthe Illinois state constitution. Ill.Const. Art. 4, § 13 (1970).Defendants obviously take the opposite view.

We conclude that a denial of punitive damages in wrongful deathactions does not violate the equal protection clause of theUnited States Constitution. Huff v. White Motor Corp.,609 F.2d 286 (7th Cir.1979); Johnson v. International Harvester Corp., 487 F. Supp. 1176(D.N.D. 1980); In Re Paris Air Crash Disaster, 427 F. Supp. 701(C.D. 1977). Limitations on damages in wrongful death actions,where they are not limited to personal injury actions, have beenheld constitutional by the majority of courts to consider thequestion. Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974);Mitseff v. Acme Steel Co., 208 F. Supp. 805 (N.D.Ill. 1962); Glickv. Ballentine Produce, Inc., supra, appeal dis'd 385 U.S. 5(1966); Butler v. Chicago Transit Authority, 38 Ill.2d 361,231 N.E.2d 429 (1967).

Denial of punitive damages in wrongful death actions is not "sounrelated to the achievement of any combination of legislativepurposes that . . . [the court] can only conclude that thelegislature's actions were irrational." Parham v. Hughes,441 U.S. 347, 352, 99 S.Ct. 1742, 1746, 60 L.Ed.2d 269 (1979). Thestate has a legitimate interest in the amount and distribution ofdamages to survivors of persons wrongfully killed. A state maydetermine that its interest in maintaining accurate and efficientdisposition of property at death is best served by limitingdamages in these actions to exclude punitive damages. See Parhamat 357, 99 S.Ct. at 1748. Also, the state may believe that anypunishment for wrongful conduct, beyond compensation for thoseinjured or killed, is best handled through state of federalcriminal processes.

For these reasons, we find that a denial of punitive damages inwrongful death actions does not violate the equal protectionclause of the United States Constitution.

The constitutionality under state constitutions of denyingpunitive damages in wrongful death actions must be addressedsince if it is unconstitutional, it might impact on the analysisof the conflicts rules of these jurisdictions.

The equal protection clauses of the Michigan and Illinoisconstitutions are coextensive with that of the federalconstitution. See Friedman & Rochester, Ltd. v. Walsh, 67 Ill.2d 413,10 Ill.Dec. 559, 367 N.E.2d 1325 (1977); Commissioners ofHighways of Town of Annawan v. U.S., 466 F. Supp. 745, 769(N.D.Ill. 1979); Moore v. Spangler, 401 Mich. 360, 258 N.W.2d 34(1977). For the reasons stated with respect to the federalconstitution, therefore, the unavailability of punitive damagesin these actions does not violate the Illinois or Michiganconstitutional protections.

The California equal protection clause, while fundamentallyequivalent to that of the federal constitution, requires "somerationality" in the nature of the class singled out." Brown v.Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973);Serrano v. Priest, 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929(1976). There obviously is a rational distinction between thedamages of persons injured in accidents who survive anddescendants or heirs of persons killed in accidents. There is nosubstantial difference between not allowing damages for pain andsuffering or nature and extent of the injuries in death actionsand not allowing punitive damages. The decisions of the courtsand legislatures to preclude recovery of punitive damages inwrongful death actions fulfills this requirement. See contra InRe Paris Air Crash, supra.

Finally, the special legislation clause of the Illinoisconstitution must be considered. Art. 4, section 13 of theIllinois constitution provides: "The General Assembly shall passno special or local law when a general law is or can be madeapplicable. . . ." Plaintiffs argue that the judicialconstruction of the wrongful death statute to preclude punitivedamages is a special law violative of this provision since thecommon-law right to punitive damages can be made applicable towrongful death actions.

This contention ignores the fact that other statutes inIllinois expressly providing that punitive damages may not berecovered have been upheld against challenges that theyconstitute "special legislation". Smith v. Hill, 12 Ill.2d 588,147 N.E.2d 321 (1958) (upholding ban on punitive damages inbreach of marriage promise actions); Siegall v. Solomon,19 Ill.2d 145, 166 N.E.2d 5 (upholding ban on punitive damages inalienation of affections action).Further, the "special legislation" prohibition only requires thatthe law operate alike in all places and upon all persons in likecircumstances within the state. Adams v. Continental Cas. Co.,21 Ill. App.3d 111, 314 N.E.2d 495 (1974); Rincon v. License AppealCommission of City of Chicago, 62 Ill.App.3d 600, 19 Ill.Dec.406, 378 N.E.2d 1281 (1978); Friedman & Rochester, Ltd. v. Walsh,supra.

CONCLUSION

The inconsistency of finding punitive damages available againstone defendant and not the other is compelled by differences inthe various states' conflict of law and punitive damages rulesand reflects the problems inherent in the application of statelaw to activities of national scope, such as those of the airlineindustry. Airlines and airplane manufacturers are subject touniform federal regulation in almost every aspect of theiroperations, except their tort liability.

As recently as 1978, a bill was introduced in Congress toestablish a federal cause of action for injuries suffered throughaviation activity. See H.R. 10917, 124 Cong.Rec. No. 17 (February14, 1978). If this bill, or any of its predecessors had passed,those actions would all be governed by federal law, uniform as toliability and damages, rather than by the varying laws of anumber of states. See Note, 28 Vand.L.Rev. 621, 625 (1975). It istime that this important area of federal concern be addressed bythe Congress to prevent substantial and incongruous variations inliability and damages determinations based on identical conductsolely because of differences in state conflicts of lawprinciples and underlying tort law. It is clearly in theinterests of passengers, the airlines, and the airplanemanufacturers, as well as the state and federal governments, thatthis national activity be governed by uniform principles offederal law.

One final observation is appropriate. Notwithstanding all ofthe foregoing, it remains to be determined whether or not theevidence as to the conduct of MDC will warrant the submission ofany issue of punitive damages to the jury. That questionobviously cannot be answered until a trial on the issue ofliability.

For the reasons stated, the motion of defendant McDonnellDouglas Corporation to strike all pending claims for punitivedamages in the wrongful death actions before the court will bedenied as to all actions, except those originally filed in PuertoRico. The motion of defendant American Airlines to strike allpending claims for punitive damages in the wrongful death actionsbefore the court will be granted as to all actions.

Because the availability of punitive damages against eitherdefendant may control and effect the scope of discovery of thisaction, and in the opinion of the court, an immediate appeal fromthis order will materially advance the ultimate termination ofthis litigation, this matter will be certified pursuant to28 U.S.C. § 1292(b) for immediate appeal.

An appropriate order will enter.

1. Some plaintiffs contend that the motion is more properlyconsidered as a motion to dismiss for failure to state a claimunder F.R.Civ.P. 12(b)(6) since motions to strike under Rule12(f) must be filed within certain time limits. However,F.R.Civ.P. 12(f) provides that a court may consider a motion tostrike at any time.

2. At the time of the crash, American's center of operations wasin Texas. Plaintiffs argue that courts have applied the"operations center" test to determine the principal place ofbusiness for carriers such as American. Herschel v. EasternAirlines, Inc., 216 F. Supp. 347 (S.D.N.Y. 1963); Clothier v.United Airlines, Inc., 196 F. Supp. 435 (E.D.N.Y. 1961). Thesecases, involving determination of diversity, are not applicableto the present situation. Further, as American indicates, thiscircuit applies the "nerve center" test to determine diversityissues. Celanese Corp. of America v. Vandalia Warehouse Corp.,424 F.2d 1176 (7th Cir. 1970). To the extent that this diversitytest applies to a determination of the conflicts issues,therefore, it indicates that New York law should be applied.

3. Texas would allow punitive damage recovery by spouses ordescendants in a wrongful death action. Tex.Const. Art. 16, §26 (1975). See also Scoggins v. Southwestern Elec. Service Co.,434 S.W.2d 376 (Tex.Civ.App. 1968); Pace v. McEwen, 574 S.W.2d 792(Tex.Civ.App. 1978).

4. The clear trend of decisions is to hold a corporationresponsible for punitive damages only where corporate officers or"management" participated or acquiesced in unlawful conduct. SeeDoralee Estates, Inc. v. Cities Service Oil Co., 569 F.2d 716(1st Cir. 1977); Jackson v. Koninklijke Luchtvaart Maatschappij,N.V., 459 F. Supp. 953 (S.D.N.Y. 1978); Oakview New Lenox Schoolv. Ford Motor Co., 61 Ill.App.3d 194, 378 N.E.2d 544, 19 Ill.Dec.43 (3d Dist. 1978).

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