Friends For All Children, Inc. v. Lockheed Aircraft Corporation

This is a tort action on behalf of Vietnamese orphans for injuries suffered in a tragic aviation accident in South Vietnam in 1975. The suit is over eight years old, and this appeal is the fourth before this court. Seven years after the action was filed, the District Court granted partial summary judgment on a motion on behalf of the Vietnamese children adopted by non-U.S. parents, holding that Lockheed was liable for the cost of diagnostic examinations of the children. Finding that approximately forty adopted Vietnamese children living in France faced irreparable injury unless they promptly obtained diagnostic examinations, the court entered a mandatory injunction pendente lite. The injunction ordered Lockheed to create a $450,000 fund from which reasonable expenses of diagnostic examinations would be paid.

The first of the two principal issues before us is whether the law of tort of the District of Columbia encompasses a cause of action for diagnostic examinations in the absence of proof of actual injury. Determining that such a cause of action does exist, we then turn to consider whether the existence of any material, disputed facts precludes the entry of summary judgment against Lockheed and whether partial summary judgment is likely to prejudice Lockheed in subsequent jury trials.

The second principal issue requires us to assess the propriety of mandatory preliminary injunctive relief in a common law tort action in which the defendant has already been adjudicated liable but where a trial to determine the amount of liability will be so long delayed that, in the interim, the plaintiffs face irreparable injury. Deciding that in the specific circumstances of this case such an injunction can be justified conceptually under general equitable principles, we then consider whether the injunction abridges Lockheed's constitutional rights to due process and jury trial. Determining that the injunction indeed passes constitutional muster, we then find that the order neither violates the terms of certain stipulations entered into in 1979 between the parties nor impermissibly shifts the cost of litigation to the defendant. Finally, we canvass the traditional factors requisite to the award of interim equitable relief. Upholding the District Court's determination that these factors favor issuance of the injunction, we affirm the judgment below.1

* This appeal is another chapter in the protracted litigation arising out of an aviation accident during "Operation Babylift," a rescue mission for Vietnamese orphans undertaken in the last days of United States presence in South Vietnam. The tragic circumstances of the aircraft disaster are completely set out in Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (1981), cert. denied, 455 U.S. 994, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982), and need not be fully repeated here. Suffice it to say that on April 4, 1975, a Lockheed C5A Galaxy aircraft took off from Saigon en route to the United States. On board the ill-fated flight were 301 passengers, most of whom were Vietnamese orphans. Fifteen minutes after takeoff a locking system failed, causing the aft ramp and cargo doors to fall off the aircraft. The interior compartments of the plane thereupon suffered an explosive decompression and loss of oxygen. Immediately turning the aircraft back toward Saigon, the pilot attempted a crash landing, but on impact the aircraft shattered into four large pieces and countless fragments. Almost all the orphans and attendants in the cargo compartment of the aircraft were killed. However, 149 of the 152 orphans in the aircraft's troop compartment survived. Most of these orphans were infants at the time of this tragedy.

The next day the surviving orphans were flown to San Francisco where they were examined briefly by U.S. military physicians. They were then released to their adoptive parents, about half of whom were Europeans.

On April 2, 1976, an organization called Friends For All Children ("FFAC") filed a complaint in the United States District Court for the District of Columbia, alleging that Lockheed's negligent manufacture of the C5A aircraft was the cause of the disaster. FFAC claimed to be the legal guardian of the surviving children and alleged that as a result both of the decompression of the troop compartment and the crash itself, these survivors suffered, inter alia, from a neurological development disorder generically classified as Minimal Brain Dysfunction ("MBD").

Countering that negligent maintenance and operation of the aircraft by the U.S. Air Force had proximately caused the crash, Lockheed denied liability and impleaded the United States as a third party defendant. Both Lockheed and the Government then engaged in a variety of legal maneuvers aimed at securing dismissal of the suit. It is the duration of these preliminary skirmishes rather than their substance that is relevant to this case.2 At various times in 1978, the District Court rejected both the Government's and Lockheed's motions to dismiss, and the parties accordingly passed the rest of 1978 and 1979 engaging in discovery.

On December 6, 1979, over three years after suit was filed, the District Court approved the entry of various stipulations. The express purpose of these stipulations was to save "time and expenses of all parties and of the court," Preamble to Stipulation of Sept. 14, 1979, J.A. 72, and "to accomplish the fair and expeditious compensation of those children injured, without reference to fault or responsibility." Stipulation No. 10, J.A. 77. In the stipulation, the plaintiffs agreed not to seek punitive damages; in return, Lockheed agreed not to contest liability in all cases in which the parents or guardians filed amended complaints.3 Second, the stipulations provided that Lockheed would pay to the guardian ad litem $5,000 for every child for whom an amended complaint was filed. The guardian ad litem enjoyed discretion to use these funds for the infants' "medical treatment" and "therapy" or for the "infant plaintiffs' litigation expenses."4 Supplemental Stipulation of Sept. 12, 1979, J.A. 80.

The 1979 stipulations contemplated that three children would be selected for initial trials. Stipulation No. 11 of Sept. 14, 1979, J.A. 76. The parties and the court anticipated that the trial of these cases would, as frequently happens in such multi-party cases, provide the necessary information about probable litigation results so that settlements in other cases would likely follow. See Friends For All Children v. Lockheed Aircraft Corp., 87 F.R.D. 560, 562 (D.D.C.1980).

The "bellwether" cases contemplated by the stipulations all involved American-adopted children. Following jury trials, two of the plaintiffs, Schneider and Marchetti, secured judgments of $400,000 and $1,000,000 respectively. A third plaintiff, Zimmerly, received nothing for his MBD claim in his first trial, but a retrial ordered by the District Court resulted in a judgment of $500,000.5 Those "bellwether" trials, however, did not result in swift settlement.

When it became clear that the bellwether trials were not going to result in a global settlement, the District Court suggested sua sponte that it would entertain motions (1) for summary judgment on the issue of Lockheed's liability for diagnostic examinations and medical treatment, and (2) for preliminary relief ordering Lockheed to pay for such examinations and treatment pendente lite. Responding to this suggestion, the plaintiffs thereafter moved both for summary judgment and interim equitable relief. The District Court held hearings on the plaintiffs' motions, but before the court issued a ruling, the parties entered into a tentative agreement that would have paid for certain of the plaintiffs' expenses for diagnosis and treatment. In early 1981, however, the Department of Justice vetoed the agreement. Memorandum Opinion of April 4, 1984 [hereinafter "Mem. Op. II"] at 5-6, J.A. 10-11.

Meanwhile, Lockheed appealed the jury verdicts in the three "bellwether cases." In Schneider v. Lockheed Aircraft Corp., supra, this court reversed the judgments in those cases on the ground that the District Court had improperly treated a statement of Lockheed's counsel in a jurisdictional proceeding as an admission that the infants were probably injured as a result of the crash. 658 F.2d at 842-43. Moreover, the Schneider court effectively prevented a plaintiff's victory in one trial from being used in other cases for collateral estoppel (issue preclusion) effect on the issue whether the accident caused other plaintiffs to suffer from MBD. Id. at 852. The plaintiffs were thus faced with the bleak prospect of scores of individual trials.

In light of this court's decision with respect to collateral estoppel, plaintiffs renewed their discovery efforts in order to obtain materials which would more graphically demonstrate the impact of the crash. In this process, plaintiffs discovered approximately 1,000 photographs of the accident scene that had been requested at the outset of discovery but had never been produced. During the course of discovery, it also became apparent that the Air Force had actually destroyed evidence. After these revelations, a general settlement was reached among Lockheed, the Government, and most American plaintiffs. Under a stipulation approved by the District Court on August 28, 1982, Lockheed and the United States agreed to pay $13.5 million in settlement of the claims of forty-five American plaintiffs. Separate settlements with other American plaintiffs resulted in a total recovery of $17 million. The American plaintiffs averaged $300,000 each in settlement, and every American plaintiff has received a substantial recovery.6 Mem.Op. II at 9, J.A. 14.

The foreign plaintiffs, however, were not included in the settlement. Adjudication of the foreign plaintiffs' claims had been delayed by virtue of their having to do battle in various legal skirmishes which the American plaintiffs were spared. First, on June 13, 1980, Lockheed moved to dismiss the cases of all infant plaintiffs adopted by foreign parents on the ground that the District of Columbia was not a convenient forum for adjudication of the disputes. The District Court denied the motion. On November 20, 1980, Lockheed renewed its forum non conveniens motion in the wake of this court's decision on forum non conveniens issues in Pain v. United Technologies Corp., 637 F.2d 775 (D.C.Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). The District Court once again denied the motion and in April 1982, certified its ruling for interlocutory appeal under 28 U.S.C. Sec. 1292(b) in order to facilitate settlement by removing an issue on which "there was substantial ground for difference of opinion." Mem. Op. II at 10, J.A. 15. This court affirmed the District Court's order in Friends For All Children v. Lockheed, 717 F.2d 602 (D.C.Cir.1983). Despite the steadfast efforts of the District Court to bring these cases to a just and expeditious resolution, no general settlement appeared imminent.

Therefore, in the waning days of 1983, almost seven years after this suit was filed and almost eight years after the accident occurred, the parties and the District Court were faced with the prospect of trying approximately seventy cases involving foreign plaintiffs. Even if distributed among the judges of the District Court, the cases would likely take years to try. See Friends For All Children v. Lockheed, supra, 87 F.R.D. at 563. Confronting this unhappy prospect, the plaintiffs renewed their motion for partial summary judgment as to Lockheed's liability for medical diagnosis and treatment of MBD and for an injunction pendente lite ordering Lockheed to provide funds for such diagnosis and treatment. The court held twelve days of hearings on these motions.

In memorandum opinions dated March 16, 1984, and April 4, 1984, the District Court granted plaintiffs' motion for partial summary judgment on the issue of Lockheed's liability for the children's diagnostic examinations. 587 F.Supp. 180. The District Court concluded that although Schneider v. Lockheed, supra, mandated individual trials on the issue whether the accident was the proximate cause of injury, "[i]t cannot be reasonably disputed that the need for some diagnostic examinations ... is itself a proximate result of this particular crash." Memorandum Opinion of March 16, 1984 [hereinafter "Mem. Op. I"] at 7, J.A. 43 (emphasis in original). The District Court, however, denied partial summary judgment on the issue of Lockheed's liability for treatment because any such liability was dependent on a finding that the accident was the proximate cause of injury to each individual plaintiff.

The District Court further found that the cost of the diagnostic examinations was "bitterly disputed" and therefore held that summary judgment would not lie as to the amount of Lockheed's monetary liability. Mem. Op. II at 20, J.A. 25. The court, however, did grant plaintiffs' motion for a mandatory preliminary injunction ordering Lockheed to create a fund from which the costs of diagnostic examinations for the French plaintiffs could be drawn.7

Fully recognizing that such an injunction was quite unusual, the court noted several exceptional factors militating in favor of extraordinary relief. First, the court emphasized that Lockheed had stipulated as to its liability for compensatory damages. Inasmuch as the court had granted partial summary judgment holding that the accident was the proximate cause of the need for diagnostic examinations, Lockheed was now, by virtue of its own stipulations, liable for the cost of such examinations. The court stated that plaintiffs had no adequate remedy at law, because the "extreme delay inherent in the complexity of this unique litigation, the number of plaintiffs, and the litigation tactics of the defendant renders any ultimate award of damages inadequate to remedy the immediate needs of the plaintiffs." Mem. Op. I at 12, J.A. 48.

Once the concept of an equitable injunction had been justified in the particular circumstances of this case, the court canvassed the traditional factors governing whether an injunction pendente lite is appropriate. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C.Cir.1958). The District Court first concluded that the approximately forty French plaintiffs would be irreparably injured in the absence of an injunction.8 Mem. Op. I at 11, J.A. 47. In the court's view, examinations were needed "immediately. The urgency arises from the fact that many of the alleged disorders ... can be adequately treated and the disabling symptoms minimized only if identified early in life, and before the onset of adolescence." Id. The court made a specific factual finding that French public health services do not provide the kind of comprehensive diagnostic examinations required to determine if the children are suffering from MBD. See Mem. Op. II at 26, J.A. 31. The court accordingly found that French plaintiffs were unlikely to receive the needed comprehensive examinations, see Mem. Op. II at 18, J.A. 23, and stated that "if the underlying neurological disorders, if any, remain undiagnosed ... much longer, the prognosis for these children, who are nearing adolescene [sic], is poor." Id.

Turning to the element of likelihood of success on the merits, the District Court concluded that plaintiffs had made a strong showing that a jury would award damages equivalent to the cost of reasonable diagnostic examinations. See Mem. Op. II at 24, J.A. 29; Mem. Op. I at 13, J.A. 49. Weighing the balance of hardships between the plaintiffs and defendant, the District Court acknowledged some risk to Lockheed because of the possibility that a jury would award less in damages to a particular plaintiff than he or she had already received from the fund, but the court nonetheless concluded that the threat of leaving undiagnosed the potentially deteriorating medical condition of MBD posed a much greater risk. The court further stated that diagnostic examinations might identify disorders among the plaintiff children that could be treated and minimized, thereby saving the defendant compensatory costs in the long run. Mem. Op. I at 14, J.A. 50.

Finally, the court concluded that the injunction would serve the public interest. Diagnostic examinations, the court observed, "may finally produce the sort of hard data on the medical condition of these children that defendant purports to require before it will even consider settlement of these cases." Mem. Op. I at 15, J.A. 51. In light of the enormous burden that these cases continue to impose on the judicial system, the court held that facilitating settlement of this complex and protracted litigation was clearly in the public interest.

Pursuant to the injunction, the court ordered Lockheed to deposit $450,000 into the Registry of the District Court. The court calculated this amount by prorating the $550,000 amount that plaintiffs claimed would be necessary to fund "screening" and diagnostic examinations for approximately fifty-three plaintiffs. Fully aware that plaintiffs' proffered measure of the amount did not provide a definitive standard, the court nonetheless determined that "[i]n the light of the circumstances ... the examinations should not be delayed to determine these precise costs." Mem. Op. II at 21, J.A. 26.

To minimize hardship to Lockheed and to prevent excessive funds from being expended, the District Court fashioned a "voucher" system to govern disbursements from the fund. Under this system, no funds are to be distributed until (1) the guardian ad litem submits a voucher detailing expenses incurred or anticipated, and (2) Lockheed has had an opportunity to respond to the proposed disbursement. Expenses not directly related to the provision of diagnostic examinations are to be disallowed. Mem. Op. II at 30, J.A. 35. Moreover, the District Court established a procedure whereby a panel of experts is to decide what further diagnostic tests should be given an individual child.9 Once again, Lockheed will have an opportunity at this juncture to respond by arguing that the record does not support a determination that the plaintiff is likely to succeed at trial in winning compensation for a particular test.10 Mem. Op. I at 16, J.A. 52.

Lockheed unsuccessfully sought a stay of this injunction in both the District Court and this court. Here on appeal, Lockheed contends that summary judgment is improper because (1) no cause of action exists under District of Columbia tort law for placing a plaintiff "at risk"; (2) material facts are in dispute as to the proximate cause of the need for diagnostic examinations; and (3) the grant of partial summary judgment will impose a substantial risk of confusing the trier of fact. Lockheed also contends that even if summary judgment was appropriate, the entry of a mandatory preliminary injunction was improper because interim injunctive relief (1) cannot be awarded in an action which ultimately seeks only the legal remedy of money damages; (2) denies Lockheed its constitutional rights both to due process and to a jury trial on damages; (3) impermissibly shifts the costs of litigation to Lockheed; and (4) violates the 1979 stipulations among the parties. Finally, Lockheed argues that plaintiffs do not in any event satisfy the normal standards for an award of preliminary injunctive relief.11

The District Court's entry of interim relief requires us to undertake a two-step analysis. First, we will review the grant of partial summary judgment with respect to the issue whether Lockheed is liable for the cost of diagnostic examinations. Then we will review the propriety of entering a mandatory preliminary injunction for which the grant of summary judgment served as necessary predicate.

* Lockheed's first argument is that District of Columbia tort law has not heretofore recognized a cause of action for recompense for diagnostic examinations designed to discover whether an individual has been injured, unless the individual has first proved actual physical injury. Relying upon cases from other jurisdictions suggesting that the common law of tort does not encompass an action for being put "at risk," Lockheed argues that if the District of Columbia courts were presented with this action they likewise would decline as a matter of law to recognize it.

As this action comes before us as a diversity case, we are, of course, obligated to apply District of Columbia law.12 See Anchorage-Hynning & Co. v. Moringiello, 697 F.2d 356, 360-61 (D.C.Cir.1983) (holding that the principle of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), fully applies to federal courts in the District of Columbia when they exercise jurisdiction over state-created causes of action). District of Columbia law, however, is silent on the specific issue whether a plaintiff may maintain an action for diagnostic examinations in the absence of proof that he or she was physically injured. The lack of clarity of tort law in this jurisdiction, however, does not absolve this court of the duty of resolving the issue in the manner which, in our best lights, we predict that the District of Columbia Court of Appeals would were it presented with the question.13 In light of general principles of tort law, the Restatement (Second) of Torts, and the law of other jurisdictions, we believe that the District of Columbia Court of Appeals would recognize such a cause of action. Sustaining a cause of action for diagnostic examinations in the circumstances here serves the two principal purposes of tort law--the deterrence of misconduct and the provision of just compensation to victims of wrongdoing. Moreover, we believe that the cases cited by Lockheed from other jurisdictions are readily distinguishable: their refusal to recognize a cause of action for being put "at risk" is grounded upon difficulties of speculative proof which quite clearly do not exist in this case.

To aid our analysis of whether tort law should encompass a cause of action for diagnostic examinations without proof of actual injury, it is useful to step back from the complex, multi-party setting of the present case and hypothesize a simple, everyday accident involving two individuals, whom we shall identify simply as Smith and Jones:

Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.

From our example, it is clear that even in the absence of physical injury Jones ought to be able to recover the cost for the various diagnostic examinations proximately caused by Smith's negligent action. A cause of action allowing recovery for the expense of diagnostic examinations recommended by competent physicians will, in theory, deter misconduct, whether it be negligent motorbike riding or negligent aircraft manufacture. The cause of action also accords with commonly shared intuitions of normative justice which underlie the common law of tort. The motorbike rider, through his negligence, caused the plaintiff, in the opinion of medical experts, to need specific medical services--a cost that is neither inconsequential nor of a kind the community generally accepts as part of the wear and tear of daily life. Under these principles of tort law, the motorbiker should pay.

Similarly, in this case, the crash exposed the plaintiffs to the risk of serious brain damage. The District Court explicitly found that, in the opinion of competent medical experts, comprehensive diagnostic examinations are needed to determine whether and to what extent treatment may be necessary. According to the District Court:

Defendant's and plaintiffs' experts, as usual, agreed on very little. They did agree, however, that most if not all these children should receive a comprehensive set of diagnostic examinations to identify their maladies, if any, and to determine appropriate treatment. The experts also agreed that the examinations should be performed without delay if there is to be meaningful treatment for the ones who suffer disorders.

Mem. Op. I at 6, J.A. 42. The court's memorandum quoted directly from both the defendant's and the plaintiffs' experts in support of this finding.

Although Lockheed may be able to show that, in individual cases, brain damage was not caused by the accident, the District Court correctly concluded that the crash proximately caused the need for a comprehensive diagnostic examination. The court found that no diagnostic examinations would be necessary "but for the fact that these children endured explosive decompression and hypoxia aboard a plane which subsequently crashed, and that after the crash they received relatively cursory, unspecialized examinations from the Air Force without any systematic follow-up by either defendants." Addressing Lockheed's claim that the need for the examinations existed prior to the crash, the court explained: "Even assuming that [many of the plaintiffs had pre-existing neurological deficits when they boarded the plane], diagnostic examinations of those with such deficits remains necessary to determine which children had pre-existing deficits and whether the crash has a therapeutic effect on previously injured children." Id. at 8 n. 7, J.A. 44.

Lockheed argues that the law of tort does not embrace a cause of action for diagnostic examinations. The cases Lockheed cites for the general proposition that the common law recognizes no action for being put "at risk" are readily distinguishable on the grounds that the alleged injury to be compensated was speculative without the corroborative presence of physical injury. For instance, Mink v. University of Chicago, 460 F.Supp. 713, 716 n. 2 (N.D.Ill.1978), held only that those who had been put at risk through the ingestion of Diethylstilbestrol (DES) as part of an experiment could collect compensation neither for the increased risk of cancer to themselves and their children nor for emotional distress unless they exhibited physical symptoms. The "injury" that stems from having an increased risk of disease is obviously speculative. It is both difficult to quantify the amount of increased risk imposed on an individual who does not yet have a disease and difficult to conceptualize what that risk is worth in money damages. In the absence of physical symptoms, emotional distress caused by potential risk may also be thought too speculative to support recovery. But cf. Davis v. Graviss, 672 S.W.2d 928 (Ky.1984) (holding that an accident victim who had a permanent defect in her skull could recover "for mental suffering and impairment of earning power resulting from the fear caused by the increased risk of future harm") (emphasis added). Here, however, the plaintiffs' need for diagnostic examinations can be shown through competent medical testimony.14

Moreover, in light of the Restatement (Second) of Torts' definition of "injury," we are not obliged to accept Lockheed's implicit claim that undergoing diagnostic examinations does not in itself constitute injury. The Restatement broadly defines injury as "the invasion of any legally protected interest of another." See RESTATEMENT (SECOND) OF TORTS Sec. 7. It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations.15

Second, Lockheed argues that material facts are in dispute over whether the accident was a but-for cause of plaintiffs' need for diagnostic examinations. Lockheed contends that evidence in the record suggests that, by virtue of their residing in Vietnamese orphanages, the children were already in need of diagnostic examinations for MBD when they boarded the plane. In consequence, the argument goes, Lockheed should not be held responsible for a pre-existing injury.

As principal support for its argument, Lockheed points to a letter which FFAC sent to adoptive parents before the children left Saigon on the ill-fated flight.16 The letter recommended that each child "have a complete physical exam and extensive lab tests as soon as he arrives." J.A. 91. The letter detailed various physical conditions, such as fever, lung congestion, or diarrhea, from which the children might be suffering upon arrival. Id. The letter went on to describe certain psychological problems that the adopted children might encounter: "You may notice that your child lags behind other children his age in his mental and social development .... A few react by becoming hyperactive." Id. The letter indicated that infants with psychological problems would require "consistent discipline, tempered with lots of love and understanding." Id. at 92.

Review of the grant of summary judgment, of course, requires us to draw all inferences in favor of the opposing party. See, e.g., Abraham v. Graphic Arts Int'l Union, 660 F.2d 811, 814-15 (D.C.Cir.1981). We are persuaded, however, that this letter is far too weak a reed on which to support an inference that plaintiffs already stood in need of diagnostic examinations for MBD. First and foremost, the letter does not even mention MBD. While it does mention that some children may be hyperactive, which is sometimes a symptom of MBD (as well as other conditions), it does not suggest that this symptom requires a specific diagnostic examination. Indeed, it is abundantly clear that possible psychological problems mentioned in the letter appear in the context of suggesting to the adoptive parents that overcoming such problems will require constant "love and understanding." There is no suggestion whatever that the physical examination mentioned at the beginning of the letter in the context of physical illnesses like diarrhea and lung congestion conveyed to parents the need for a diagnostic examination for a subtle illness like MBD.

Accordingly, we decline the invitation to view FFAC's letter as raising a material issue of fact as to whether the airplane accident caused the need for diagnostic examinations for MBD.

Lockheed further argues that partial summary judgment is inappropriate here because it will confuse the jury and prejudice Lockheed in the trials to be conducted with respect to the plaintiffs' principal claims.17 Lockheed contends that the District Court will be forced to frame jury instructions which, in effect, will announce that Lockheed did cause recoverable harm, the amount of which the jury is to determine. Such an instruction will, according to Lockheed, prejudice the jury in deciding the essential issue whether the crash proximately caused the children to suffer from MBD or other illnesses.

We have every confidence that the District Court will frame the instructions in terms more artful than those Lockheed pessimistically contemplates so as to minimize any potential prejudice. For instance, an appropriate instruction might state that Lockheed has been found liable for costs of examinations to discover whether a child has been injured and that it is the jury's duty to determine the reasonable cost of such examinations. However, the instructions would also presumably state that the finding with respect to diagnostic examinations does not imply that the accident, in fact, caused any injury. Nonetheless, if all else fails and the instructions at any of the individual trials are framed so as to be prejudicial, Lockheed will have the usual recourse of appeal to this court.

Moreover, we cannot overlook the fact that the jury instructions in the trial of Magali Maupoint--the only French plaintiff as yet to have gone to trial--do not bear out Lockheed's fear of substantial prejudice. In relevant part, the jury instructions provided:

If from the evidence and other instructions of the Court you find in favor of the plaintiff, then, in assessing the damage to which she is entitled, you may take into consideration any of the following, which you believe proximately resulted from the accident:

* * *

* * *

(8) Any medical expenses the plaintiff will probably incur in the future, including any diagnostic examination or examinations of her.

Maupoint Trial Transcript at 3957. At the Maupoint trial, the District Court therefore did not allude at all to the grant of partial summary judgment.

At oral argument, Lockheed conceded that it interposed no objection to this portion of the Maupoint jury instructions. Instead, Lockheed contended that the failure to make use at trial of the partial summary judgment demonstrated that its entry was pointless. We do not agree. The entry of partial summary judgment with respect to Lockheed's liability for diagnostic examinations was a necessary predicate to the entry of the preliminary injunctive relief here. Lockheed contends that for various reasons such relief is impermissible. It is to those contentions that we now turn.

* Lockheed claims that even if partial summary judgment was appropriate, the entry of a preliminary mandatory injunction, ordering it to pay $450,000 into the Registry of the District Court, was improper. Lockheed argues that it is always impermissible for a court to provide interim equitable relief in a suit the ultimate objective of which is the recovery of money damages--the classic remedy at law.18 Lockheed invokes no less an authority than Learned Hand as the fons et origo of this doctrine. In Sims v. Stuart, 291 F. 707 (S.D.N.Y.1922), Judge Hand displayed no hesitation in rejecting the plaintiff's motion for a mandatory injunction ordering a collector of customs in advance of trial to return money that the plaintiff contended had illegally been seized. Judge Hand stated:

The acts charged constitute, on the plaintiff's theory, a conversion, nothing more. Under the guise of a mandatory injunction I do not see how I can give final relief in advance of answer and trial in such a case. It is, of course, true that equity will at times affirmatively restore the status quo ante pending the suit. But never, so far as I know, will it take jurisdiction over a legal claim merely to hurry it along by granting final relief at the outset of a cause .... I cannot suppose that it would anywhere be seriously contended that upon a conversion of money the victim might file a bill in equity and get final relief by mandatory injunction.

291 F. at 707-08 (citations omitted).

Judge Hand's remarks have enjoyed wide and lasting currency. In Enercons Virginia, Inc. v. American Security Bank, N.A., 720 F.2d 28 (D.C.Cir.1983), this court recently had occasion to quote Sims in reversing a temporary restraining order enjoining a bank from refusing to honor a cashier's check payable to the plaintiff. The Enercons court emphasized that since the plaintiff's action was a "straightforward action on a negotiable instrument," the plaintiff possessed an adequate remedy at law and the injunction was impermissible. Id. at 29. See also In re Arthur Treacher's Franchisee Litigation,