Kalitta Air L.L.C. v. Central Texas Airborne System Inc. ( 2013 )

FILED
NOT FOR PUBLICATION NOV 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KALITTA AIR L.L.C., No. 12-15725
Plaintiff - Appellant, D.C. No. 4:96-cv-02494-CW
v.
CENTRAL TEXAS AIRBORNE MEMORANDUM*
SYSTEM INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted November 8, 2013
San Francisco, California
Before: FARRIS, BLACK**, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Susan H. Black, Senior Circuit Judge for the U.S. Court of
Appeals for the Eleventh Circuit, sitting by designation.
Kalitta Air L.L.C. (Kalitta) appeals the district court’s entry of judgment in
favor of Central Texas Airborne System Inc. (CTAS) following a jury verdict in
favor of CTAS on Kalitta’s negligence claim. This is the third time this case has
come before this Court. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
First, the district court did not abuse its discretion by refusing to enter a
partial verdict in favor of Kalitta following the entry of a mistrial in March 2005.
See Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1134 (9th Cir. 1995).
The 2005 jury did not resolve the entirety of Kalitta’s negligence claim, and the
issue of CTAS’s breach of a duty was so intertwined with the issues of causation
and damages that holding a partial retrial on causation and damages alone would
have caused confusion and uncertainty. Gasoline Prods. Co. v. Champlin Ref. Co.,
283 U.S. 494, 500 (1931); Pumphrey, 62 F.3d at 1133-34.
Second, the district court did not abuse its discretion by allowing CTAS to
present evidence that Hayes International (Hayes) made a conscious decision to
omit a doubler from the supplemental type certificate (STC) because the evidence
was relevant as it had a tendency to make a fact of consequence more or less
probable. Fed. R. Evid. 401. Kalitta’s theory of liability was based on the
assumption that, had CTAS investigated the necessity of a doubler, that part would
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have been added to the STC. Had a doubler been added to the design and installed
on Kalitta’s planes that had been modified pursuant to the STC, Steve Fox would
not have initiated his investigation and the Federal Aviation Administration (FAA)
would not have issued the Airworthiness Directive (AD) which effectively
grounded the planes. However, if Hayes intentionally omitted a doubler from its
design, it was less likely to second-guess that decision and add a doubler to the
STC in response to an investigation by CTAS. Accordingly, the evidence related
to a key element of Kalitta’s causation case, and the district court’s decision to
admit it was not “beyond the pale of reasonable justification under the
circumstances.” Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th
Cir. 2009) (internal quotation marks omitted).
Third, Kalitta raises a host of issues pertinent to its negligent
misrepresentation claim and various negligence theories unrelated to the issue of
the absent doubler. Kalitta, however, explicitly and strategically abandoned its
negligent misrepresentation claim and other negligence theories for the
pared-down third trial. The abandoned issues Kalitta now seeks to appeal include
(1) the exclusion of William Pieper’s testimony, which was proffered to establish
that CTAS’s installation and modification services fell below industry standards;
(2) the district court’s redaction of two FAA Reports that Kalitta explicitly says
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“proved [its] negligent misrepresentation claim”; (3) whether CTAS was governed
by Amendment 23 or Amendment 45 to the FAA Regulations—an issue that the
parties agreed had not been raised during the third trial; and (4) the district court’s
exclusion of Donald Buckley’s testimony about FAA-mandated reporting
requirements for observable skin wrinkling on aircraft. Having made the deliberate
choice to abandon its claim of negligent misrepresentation and other negligence
theories, and to forgo the introduction of the specified items of evidence in favor of
presenting a streamlined theory of liability relating solely to CTAS’s alleged
negligence regarding the doubler, Kalitta cannot now blame the district court for
the consequences of its actions.
Nevertheless, even if Kalitta could pursue its abandoned issues at this
juncture, we would reject them on the merits. After reviewing the voluminous
record on appeal, we are convinced the district court did not abuse its discretion in
making these rulings. See Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th
Cir. 2008).
Fourth, Kalitta pursues a plethora of lingering issues from the first trial in
2001 that could have been presented to this Court during Kalitta’s first appeal.
These issues include (1) the district court’s redaction of the AD; (2) the issuance of
a limiting instruction directing the jurors that they could not consider the contents
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of the AD for its truth; (3) allowing CTAS to collaterally attack the AD; (4) the
issuance of a limiting instruction informing the jurors they could not consider two
service bulletins for their truth; and (5) the district court’s issuance of an
independent contractor instruction regarding Terry Cox, CTAS’s chief stress
engineer for the modification of Kalitta’s planes. We will not consider these
contentions because the district court made the same rulings during the first trial
and the same arguments Kalitta now advances were available during its first appeal
to this Court. Kesselring v. F/T Arctic Hero, 95 F.3d 23, 24 (9th Cir. 1996);
Munoz v. Cnty. of Imperial, 667 F.2d 811, 817 (9th Cir. 1982) (“We need not and
do not consider a new contention that could have been but was not raised on the
prior appeal.”).
Finally, we need not consider any of Kalitta’s various damages issues
because the jury during the third trial never reached the issue of damages. Further,
because we have already concluded that none of the alleged errors enumerated by
Kalitta warrant reversal or remand for a retrial, it is unnecessary to consider
CTAS’s arguments regarding the economic loss doctrine.
AFFIRMED.
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