Date: 10-30-2001

Case Style: Mark C. Durkin v. Intevac, Inc., et al.

Case Number: 16386

Judge: Zarella

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Vincent M. Musto, with whom, on the brief, were Rosalind J. Koskoff and Joel T. Faxon, for the appellees (plaintiffs).

Defendant's Attorney: Mark R. Kravitz, with whom were Jeffrey R. Babbin and, on the brief, Victor A. Bolden, Patrick J. Corcoran, Kevin C. Shea, Patrick M. Noonan, Frank J. Silvestri, Jr., S. Dave Vatti, Charles S. Tusa, Charles P. Reed, Donald E. Frechette and Christopher J. Lynch, for the appellants (defendants).

Janet C. Spegele, Cynthia L. Amara and Loretta M. Smith filed a brief for the Connecticut Business and Industry Association et al. as amici curiae.

Description: This is a products liability action arising out of a military helicopter collision that occurred in Australia on June 12, 1996. The primary issue in this interlocutory appeal1 is whether the trial court abused its discretion in denying the defendants’ motions to dismiss on the ground of forum non conveniens. We conclude that the doctrine of forum non conveniens requires that the action be dismissed. Accordingly, we reverse the decision of the trial court to the contrary.On June 12, 1996, in Northern Queensland, Australia, two Australian military Black Hawk helicopters collided in midair and crashed during a training exercise, killing eighteen military personnel and injuring several others. The plaintiffs, who all are Australian citizens, are either persons injured in the collision or the estates of persons killed in the collision. The plaintiffs brought this action in Connecticut in several counts based on products liability, negligence and breach of express and implied warranties. The plaintiffs alleged that the collision was caused by, inter alia, design or manufacturing defects in the night vision goggles and the helicopters used in the training exercise. The defendants,2 which were involved in the manufacturing process of either the night vision goggles, the helicopters or devices used therewith, moved to dismiss the complaint on the ground of forum non conveniens. The trial court denied the defendants’ motions. This certified interlocutory appeal followed.

The relevant facts are derived from the plaintiffs’ complaint, the affidavits filed in support of and in opposition to the defendants’ motions to dismiss and a certain Board of Inquiry3 summary, described more fully later in this opinion, which the defendants submitted in support of their evidentiary contentions. On June 12, 1996, members of the Australian Army’s Special Air Service Regiment were conducting training with members of the Army’s Fifth Aviation Regiment at the High Ridge Training Area in Northern Queensland. The training included a nighttime, live fire exercise during which the Special Air Service troops would rappel from helicopters in a simulated attack on a terrorist encampment. The training was in preparation for the 2000 Sydney Olympics.

At approximately 6:45 p.m., one of the six helicopters participating in the exercise made physical contact with another helicopter. The main rotor blades from the first helicopter sliced through the fuselage and the tailboom of the second helicopter, causing damage to the second helicopter’s control and guidance systems, an engine, the cargo compartment, the structural frame and one of its fuel tanks. The fuel from the ruptured fuel tank of the second helicopter came into contact with the first helicopter’s engine and caused an explosion between the aircraft, both of which caught fire. The collision sheared the main rotor blades from the first helicopter, causing it to roll to the left and eventually crash to the ground; the first helicopter exploded upon contact with the ground and was consumed by fire. The second helicopter lost control, spun and eventually crashed to the ground. Fire, fed by ignited fuel from a ruptured fuel cell, spread throughout the second helicopter.

Eleven occupants of the first helicopter and seven occupants of the second helicopter were killed in the crash. The eighteen deaths constituted the largest peacetime military disaster in Australia since 1964.

After the accident, the Chief of the General Staff of the Australian Army convened a Board of Inquiry (board) to investigate the accident, determine its causes and make recommendations designed to prevent future accidents from occurring.4 The board conducted investigations, interviewed 144 witnesses, generated over 7000 pages of records and transcripts and reported its findings. The 144 witnesses were nearly all Australian military personnel, and among them were: persons who had survived the crash; persons who had witnessed the crash; persons who had planned the training exercise; persons responsible for the safety of planning; persons responsible for the maintenance of the equipment involved; and persons responsible for the training of Australian military personnel. The board reported fourteen ‘‘primary causes’’ and twenty-four ‘‘contributory factors’’ of the accident. Among the causes and contributory factors were: (1) deficiencies in leadership in carrying out the training exercise; (2) aircrew error; (3) inadequate planning; (4) lack of sufficiently experienced aircrew members; and (5) failure to ‘‘make proper allowance for’’ the limitations and characteristics of night vision goggles in view of the lighting conditions and objectives of the training exercise.5

The plaintiffs alleged in their complaint that the collision ‘‘was caused by the failure of the night vision goggles to enable the crew members of one helicopter to adequately determine the location of the other helicopter,’’ and that this failure was the result of the negligence of certain defendants, namely, Intevac, Inc., Litton Industries, Inc., ITT Industries, Inc., Hoffman Engineering Corporation, Raytheon Optical Systems, Inc., and Gentex Corporation, in designing, testing and manufacturing the goggles, testing devices used in conjunction with the goggles and the helmets to which the goggles were secured. The plaintiffs also alleged that a certain defect in the Black Hawk helicopter, which was designed and manufactured by one of the defendants, United Technologies Corporation, caused the collision.

In their motions to dismiss and memoranda of law in support thereof, the defendants argued that Connecticut would be an inconvenient forum in which to defend. The defendants argued that an analysis of the relevant factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–509, 67 S. Ct. 839, 91 L. Ed. 1055 (1947), and Picketts v. International Playtex, Inc., 215 Conn. 490, 576 A.2d 518 (1990), favored an Australian forum.

In advancing this claim, the defendants urged the trial court to balance the hardships that would befall the parties depending upon which forum ultimately was selected. In particular, the defendants highlighted the difficulties that they would encounter in mounting a defense in the Connecticut forum in light of the fact that all sources of proof documented in the report of the extensive board investigation were located in Australia. The defendants claimed that most, if not all, of their witnesses were beyond the compulsory process of a Connecticut court. The defendants further argued that the board report squarely affixed responsibility for the accident on human error and a poorly planned training exercise, conclusions that were gleaned from evidence that is located in Australia. Finally, the defendants noted that trying the case in the Connecticut forum would prevent them from impleading the Australian government as a third party defendant for contribution purposes.

The plaintiffs contended, inter alia, that the defendants’ motions to dismiss should be denied because many of the sources of evidence necessary to prove their products liability action were located in Connecticut. The plaintiffs noted that four of the defendants, including United Technologies Corporation, had significant operations or, at least, were located, in Connecticut. The plaintiffs argued that, because of the limited discovery allowed in Queensland, and the additional complications posed by the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,6 the plaintiffs would be unable to discover documents and depose witnesses located in Connecticut adequately.

The trial court, relying on Picketts v. International Playtex, Inc., supra, 215 Conn. 490, and Miller v. United Technologies Corp., 40 Conn. Sup. 457, 515 A.2d 390 (1986), denied the defendants’ motions. The trial court first determined that Australia was an adequate alternative forum, rejecting the plaintiffs’ contention that Australia was an inadequate alternative forum because the ‘‘likely . . . costs of prosecuting the case to trial in Queensland would exceed the realistic, potential recovery should the action be successful.’’ (Internal quotation marks omitted.) The court also rejected the plaintiffs’ claim that, because of the expense involved in trying the case in Queensland, and because Australia does not permit contingency fee arrangements, they would be unable to obtain counsel.

Thereafter, the court balanced the relevant private interest factors. The factors that the court considered were: ‘‘(1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to fair trial; and (6) all other practical problems that make trial of a case easy, expeditious and inexpensive.’’7 (Internal quotation marks omitted.) The court concluded that the private interest factors favored Connecticut as the appropriate forum.

Although the trial court’s determination that the private interest factors favored Connecticut as the appropriate forum constituted the decisive factor in denying the defendants’ motions to dismiss, the court also considered the public interest factors. The court considered the following factors: ‘‘(1) administrative difficulties for the courts, i.e., court congestion and the court’s familiarity with the applicable law; (2) imposing the burden of jury duty on [the] people of a community with no relation to the litigation; (3) holding trial in the view of interested persons; and (4) having matters decided in their local forum.’’8 (Internal quotation marks omitted.) The court concluded that, ‘‘[e]ven though public interest factors favor Australia, the private interest factors favor Connecticut. The private interest factors . . . outweigh the public interest factors.’’ Accordingly, the trial court denied the defendants’ motions to dismiss on the ground of forum non conveniens. The trial court also concluded that the motions to dismiss filed by certain defendants, namely, Intevac, Inc., United Technologies Corporation, Litton Industries, Inc., Gentex Corporation, Hoffman Engineering Corporation and Raytheon Optical Systems, Inc., did not ‘‘invoke’’ Practice Book § 10-309 or § 10-32.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed and remanded

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None