Mark C. Durkin v. Intevac, Inc., et al.

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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Court's opinion.

Reversed and remanded

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