Greene v. B.F. Goodrich

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0421n.06
Filed: May 20, 2005
Nos. 03-5017/5018
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JUDY GREENE, Executrix of the Estate of )
Donald Greene, Deceased, )
)
Plaintiff-Appellee/Cross-Appellant )
)
WAUSAU INSURANCE COMPANY, )
)
Intervening Plaintiff-Appellee (03-5017) )
Intervening Plaintiff (03-5018), )
)
v. )
) ON APPEAL FROM THE
B.F. GOODRICH AVIONICS SYSTEMS, ) UNITED STATES DISTRICT
INC. d/b/a B.F. Goodrich Aerospace, ) COURT FOR THE EASTERN
Avionics and Lighting Division, n/k/a ) DISTRICT OF KENTUCKY
Goodrich Avionics Systems, Inc., )
) OPINION
Defendant/Third-Party Plaintiff )
Appellant/Cross-Appellee )
)
UNITED TECHNOLOGIES )
CORPORATION )
d/b/a Sikorsky Aircraft, )
)
Defendant )
)
PETROLEUM HELICOPTERS, INC., )
)
Third-Party Defendant. )
2
BEFORE: COLE and ROGERS, Circuit Judges; COHN, District Judge*
AVERN COHN, District Judge. This is a products liability case arising out of a
helicopter accident. Defendant-Appellant B.F. Goodrich Avionics Systems, Inc.
(Goodrich) appeals the district court’s denial of Goodrich’s motion for summary
judgment of Plaintiff-Appellee Judy Greene’s (Greene) manufacturing defect claim and
the district court’s subsequent denials of Goodrich’s motions for judgment as a matter of
law and motion for judgment notwithstanding the verdict after a jury returned a verdict in
favor of Greene.1 Greene cross-appeals a pre-trial order granting partial summary
judgment to B.F. Goodrich and an evidentiary ruling by the district court. Because we
find that Greene failed to produce sufficient evidence to create an issue of fact for the jury
that there was a manufacturing defect, we REVERSE the judgment of the district court
and REMAND for proceedings consistent with this opinion.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
The parties refer to the motions made under FED. R. CIV. P. 50 as motions for
“judgment as a matter of law” and “judgment notwithstanding the verdict.” In 1991,
however, Rule 50 was amended and the terminology changed to refer to these motions as
a motion for judgment as a matter of law and a renewed motion for judgment as a matter
of law. We hereafter refer to these motions using the current language of Rule 50.
3
I. BACKGROUND
A. Factual Background
On the night of June 14, 1999, a Sikorsky 76-A helicopter, aircraft registration
number N2743E, owned by Petroleum Helicopters, Inc. (PHI) and piloted by decedent
Donald Greene (Greene), crashed into a wooded hillside near Jackson, Kentucky. In
addition to Greene, pilot-in-command Ernest Jones (Jones) and two medical technician
passengers, Sheila Zellers and Brian Harden, died in the accident.
The helicopter took off from Julian Carroll Airport just after 8:00 p.m. in heavy
fog. Because visibility was approximately one-quarter to one-eighth of a mile, Greene
was forced to rely almost exclusively on the helicopter’s navigational instruments. Less
than two minutes after the aircraft’s liftoff, an exchange between Greene and Jones
recorded on the cockpit voice recorder (CVR) indicated that Jones told Greene that the
helicopter was in a right-hand turn and descending. The exchange between Greene and
Jones continued as follows:
8:08:05 p.m. Greene: “Okay I think my gyro just quit.”
8:08:10 p.m. Greene: “You have the controls?”
8:08:11 p.m. Jones: “You’re in a left hand turn and descending...turn, turn
back and level, level us off.”
8:08:18 p.m. Jones: “Right hand turn...right hand turn.”
8:08:24 p.m. [Initial sound of impact; CVR ceased operation]
4
B. Procedural Background
Donald Greene’s wife, Judy Greene, brought this suit, claiming that Goodrich
defectively designed or manufactured the vertical gyroscope portion of the helicopter’s
navigation system and that Goodrich was negligent in failing to warn of its defective
product.
Goodrich filed a motion for summary judgment. The district court granted the
motion in part and denied it in part. The district court summarily dismissed Greene’s
design defect claim because she produced no evidence of a flaw in the design. With
respect to Greene’s manufacturing defect claim, the district court held that Greene did not
produce evidence of fault under a negligence theory, but it held that Greene’s
manufacturing defect claim sounding in strict liability could go to a jury because genuine
issues of material fact remained with respect to causation. The district court also held that
Greene could not maintain a state-law failure to warn claim because federal law regarding
aviation standards preempted any duty imposed by state law.
At trial on the manufacturing defect claim, the jury found for Greene and awarded
her substantial damages. The jury also awarded damages to Wausau Insurance Co.,
which had been paying Greene workers’ compensation on her husband’s death. Goodrich
now appeals (1) the district court’s denial of Goodrich’s summary judgment motion on
the manufacturing defect claim; (2) the district court’s denial of its motion for judgment
as a matter of law at the end of Greene’s case and at the end of the entire case; and (3) the
district court’s denial of its renewed motion for judgment as a matter of law. Greene
5
cross-appeals, challenging the district court’s grant of summary judgment on her failure to
warn claim and the court’s exclusion of evidence of gyroscope failures that occurred
more than six months prior to the helicopter crash.
C. Background on the Product at Issue
Before proceeding to our analysis, it is first prudent to have an overview of the
product Greene claims Goodrich defectively manufactured: the vertical gyroscopes on
board the helicopter. The helicopter was equipped with two Attitude Display Indicators
(ADIs), one Standby Attitude Indicator, and two Horizontal Situation Indicators (HSIs).
ADIs indicate an aircraft’s position in relation to the earth’s horizon and help a pilot
control the position of the aircraft relative to the earth. Each ADI in the helicopter
displayed pitch, roll, and turn-rate data. The vertical gyroscopes, model number VG-204
A/B, manufactured by Goodrich, provided data to the helicopter’s ADIs (which were not
manufactured by Goodrich). The vertical gyroscopes were housed inside the nose of the
helicopter and were not visible to the pilots during flight. Each ADI received pitch and
roll data independently from its own vertical gyroscope. Each ADI also received turn-
rate data from two other gyroscopes not manufactured by Goodrich. The vertical
gyroscopes in the helicopter did not provide data to any other instrument on the
helicopter. Pilots use HSIs to determine course deviation and magnetic heading
information. The HSIs in the helicopter received information from other gyroscopes.
The Standby Attitude Indicator is a self-contained unit with its own gyroscope.
II. ANALYSIS
6
Because this case went to trial and resulted in a jury verdict in favor of Greene, we
find it unnecessary to address whether the district court erred in failing to grant summary
judgment in its entirety to Goodrich. Rather, our analysis will begin by addressing
Goodrich’s motion for judgment as a matter of law at the end of Greene’s case.
A. Whether the District Court Erred in Denying Goodrich’s Motions for
Judgment as a Matter of Law and Renewed Motion for
Judgment as a Matter of Law
We review a district court’s denial of judgment as a matter of law de novo. Moore
v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir. 1999). In cases like
this one invoking diversity of citizenship jurisdiction, the Court applies the state law’s
substantive standard for determining when judgment as a matter of law is appropriate.
Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998); Darwish v.
Tempglass Group, Inc., 26 Fed. Appx. 477, 482 (6th Cir. 2002). Under Kentucky law,
judgment as a matter of law should be granted only when “there is a complete absence of
proof on a material issue in the action, or if no disputed issue of fact exists upon which
reasonable minds could differ.” Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.
App. 1992). “[E]very favorable inference which may reasonably be drawn from the
evidence should be accorded the party against whom the motion is made.” Baylis v.
Lourdes Hosp., Inc., 805 S.W.2d 122, 125 (Ky. 1991).
1. Judgment as a Matter of Law
Goodrich says that the district court erred by not granting its motion for judgment
as a matter of law against Greene both at the close of Greene’s case and again at the close
7
of trial. As discussed below, we find that the district court erred by not granting
Goodrich’s motion for judgment as a matter of law at the close of Greene’s case.
a. Manufacturing Defect Legal Standard
Under Kentucky law, a manufacturing defect exists in a product when it leaves the
hands of the manufacturer in a defective condition because it was not manufactured or
assembled in accordance with its specifications. See Ford Motor Co. v. McCamish, 559
S.W.2d 507, 509-11 (Ky. App. 1977). A manufacturing defect claim requires the jury to
determine whether the product failed because of an error in the process of manufacture or
assembly. Id. With respect to Greene’s strict liability theory, Kentucky has adopted
RESTATEMENT (SECOND) OF TORTS § 402A. See Dealers Transp. Co. v. Battery Distrib.
Co., 402 S.W.2d 441, 446-47 (Ky. 1965). Under § 402A, the defendant is held strictly
liable if the plaintiff proves the product was “in a defective condition unreasonably
dangerous to the user or consumer.” Montgomery Elevator Co. v. McCullough by
McCullough, 676 S.W.2d 776, 780 (Ky. 1984). Proceeding under a strict liability theory
does not require the plaintiff to prove fault on the part of defendant. The plaintiff must,
however, establish causation under the “substantial factor” test. King v. Ford Motor Co.,
209 F.3d 886, 893 (6th Cir. 2000). “[P]laintiff must prove that the defendant’s conduct
was a substantial factor in bringing about plaintiff’s harm.” Id. Nothing precludes a
plaintiff from using circumstantial evidence to prove a products liability case so long as
the evidence is “sufficient to tilt the balance from possibility to probability.” Id. The
Restatement (Second) of Torts provides that “unreasonably dangerous” means a product
8
that is “dangerous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the community as to
its characteristics.” RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965).
“Defective” means “that the product does not meet the reasonable expectations of the
ordinary consumer as to its safety.” Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55
(Ky. App. 1999).
b. The Evidence at Trial
The vertical gyroscopes were destroyed in the crash; accordingly, there was no
direct evidence of vertical gyroscope failure. Greene instead relied on four major pieces
of evidence in an attempt to circumstantially prove a manufacturing defect in the pilot’s
vertical gyroscope:2
First, Greene relied on her husband’s statement seconds before the crash that he
thought his “gyro just quit.”
Second, Greene proffered evidence that in the six-month period preceding the
crash, there had been forty vertical gyroscope replacements on fifteen of the twenty-four
Sikorsky 76-A helicopters owned and operated by PHI. There also had been eleven ADI
replacements on seven PHI helicopters during that same time period. The helicopter that
crashed had three vertical gyroscopes and two ADIs replaced during the six months
2
Although there is no distinction in the record between the vertical gyroscopes in
the helicopter, it is clear that Greene’s manufacturing defect claim relates to pilot
Greene’s vertical gyroscope.
9
preceding the crash.
Third, the National Transportation Safety Board (NTSB) retrieved from the crash
site a faceplate of one of the helicopter’s ADIs. The NTSB determined from the faceplate
that, at the time of impact, the ADI indicated that the helicopter was “pointing to a
position between level flight and a 2-degree right roll. . . .”3 The NTSB’s on-site
investigation of the ground damage, including the pattern of treetop leveling and pilot-in-
command Jones’s last words, both indicated that, at impact, the helicopter was actually
“in a left hand turn and descending.” As the district court stated, “[t]o oversimplify, the
Cockpit Voice Recorder tape and the crash kinematics did not match the reading of the
recovered ADI.”
Fourth, Greene’s helicopter expert, Douglas Herlihy (Herlihy), testified that it was
more likely that a vertical gyroscope failure, rather than a failure of other instruments,
was the cause of the crash. Herlihy testified that a wiring failure between a vertical
gyroscope and its ADI was not as typical as a gyroscope failure itself.4 He also testified
that it was his opinion that “the accident was a result of instrument confusion in the
3
It is unclear from examining the record exactly how the faceplate shows the
ADI’s reading on impact.
4
Goodrich says that the district court erred when it admitted Herlihy’s expert
testimony because the district court concluded that Herlihy was not qualified as a
gyroscope expert. The record indicates, however, that during a Daubert hearing, the
district court concluded that Herlihy was competent to testify as an accident investigator
and to give his opinion regarding why the vertical gyroscope caused the crash. We find
that the district court did not err in admitting Herlihy’s testimony.
10
cockpit created by the loss of vertical gyro input to the flying pilot’s A.D.I. or gyro
horizon.”
c. Goodrich’s Challenge to Greene’s Statement
As an initial matter, Goodrich maintained on brief and during oral argument that
Greene’s statement as recorded on the CVR, “Okay I think my gyro just quit,” was
inadmissible hearsay. Goodrich says that the vertical gyroscopes feeding the helicopter’s
ADIs were located in the nose of the helicopter. Thus, Goodrich argues, it would be
impossible for Greene to see a vertical gyroscope or to know that it quit; rather, he only
would be able to see the ADIs inside the cockpit that reflected data supplied by the
gyroscopes. Additionally, Goodrich argues that there were at least six gyroscopes on the
helicopter and that it did not manufacture all of them, so admitting Greene’s statement
requires speculation as to which gyroscope Greene may have been referring.
At the time the district court admitted Greene’s statement, it did not clearly
articulate the hearsay exception on which it was relying. The district court did, however,
address this issue with specificity when it denied Goodrich’s motions for judgment as a
matter of law. The district court at that time found that the statement was admissible
under two exceptions to the hearsay rule: (1) present sense impression and (2) excited
utterance.
We review whether the district court’s determination was an abuse of discretion.
Mitroff v. Xomox Corp., 797 F.2d 271, 275 (6th Cir. 1986). Under the Federal Rules of
Evidence, hearsay is defined as a “statement, other than one made by the declarant while
11
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” FED. R. EVID. 801(c). Under FED. R. EVID. 803(1), the hearsay rule does not
exclude “[a] statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.” The excited
utterance exception to the hearsay rule under FED. R. EVID. 803(2) requires “[f]irst, there
must be an event startling enough to cause nervous excitement. Second, the statement
must be made before there is time to contrive or misrepresent. And, third, the statement
must be made while the person is under the stress of the excitement caused by the event.”
Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th. Cir. 1983).
As an initial note, it is unclear from the record if Greene’s out-of-court statement
was even offered at trial to prove the truth of the matter asserted – the definition of
hearsay. Even if it was, however, the district court did not err in admitting Greene’s
statement as either a present sense impression or as an exited utterance. With respect to a
present sense impression, certainly Greene could not personally observe the vertical
gyroscopes in the nose of the helicopter as Goodrich argues. However, it is undisputed
that Greene could see the ADIs in the cockpit that reflected data supplied by the vertical
gyroscopes in the nose of the helicopter. Although Goodrich argues that it is unclear if
Greene was referring to his ADI in his statement or another ADI in the cockpit, the fact
that he said “I think my gyro just quit” (emphasis added) appears to indicate that he was
referring to his ADI. Indeed, Herlihy, Greene’s expert, testified that it would make no
difference to an experienced pilot like Greene that the gyroscope is in the nose of the
12
helicopter. Herlihy testified that if a pilot like Greene said “my gyro just quit,” he knows
that the information displayed on the ADI is coming from the nose of the helicopter. To
suggest that a pilot who is experiencing problems with an ADI display must physically
view the gyroscope to reliably detect a malfunction is untenable.
The district court also did not err in concluding that Greene’s statement was an
excited utterance. Certainly Greene made the statement while under stress of the event
that nineteen seconds later resulted in his death. To the extent that Goodrich argues again
that Greene could not physically see the gyroscope that allegedly quit, the Advisory
Committee Notes to FED. R. EVID. 803 provide that, with respect to a declarant’s
perception of an event, “the statement need only ‘relate’ to the startling event or
condition, thus affording a broader scope of subject matter coverage.” Overall, the
district court did not abuse its discretion in admitting Greene’s statement.
d. Whether Greene’s Evidence Was Sufficient to Prove a Manufacturing Defect
At the heart of Goodrich’s argument is its position that Greene failed to meet her
burden of proof because she failed to establish an issue of fact for the jury that there was a
manufacturing defect in the pilot’s vertical gyroscope, i.e., Goodrich says that Greene’s
evidence failed to “tilt the balance from possibility to probability” and thus show that
there was a manufacturing defect in the pilot’s vertical gyroscope. See King, 209 F.3d at
893. After a review of the record and an examination of Greene’s proofs at trial, we
agree with Goodrich that the evidence Greene proffered failed to show that there was a
manufacturing defect in a vertical gyroscope.
13
Perhaps what is most problematic to us is Greene’s heavy reliance on data
indicating the number of vertical gyroscopes and ADIs that had been removed and/or
repaired in PHI-owned helicopters in the six months preceding the helicopter accident.
The parties presented us with differing interpretations of this data. The NTSB report
states that
[a]ccording to company records, in the 6 months that preceded the accident,
fleetwide, there had been a total of 40 vertical gyro replacements on 15
helicopters, and a total of 11 attitude indicator replacements on 7 helicopters. On
N2743E[, the helicopter piloted by Greene and Jones], in the preceding 6 months,
there were two attitude indicators, and three vertical gyros replaced. According to
company records, fleetwide, in the preceding 6 months, the maximum number of
attitude indicators replaced on a helicopter was three, and maximum number of
vertical gyros replaced was six.
Greene introduced Exhibit No. 21 at trial, titled “S-76 Vertical Gyro Removals” and “S-
76 Attitude Director Indicator Removals,” which purports to summarize the vertical
gyroscopes and ADIs from PHI’s helicopter fleet that were removed, replaced, and/or
sent to a repair facility between December 15, 1998 through June 14, 1999. Our review
of the data contained in this exhibit does not seem to correlate with the figures recited
above from the NTSB report. Our review of Exhibit No. 21 suggests that PHI removed
32 vertical gyroscopes and 12 ADIs from some of its helicopters in the relevant six-month
period. Regardless of the sum total of vertical gyroscopes and ADIs that were removed,
replaced, or repaired during the six months preceding the accident, however, it troubles us
that Greene argues that the data from this exhibit suggest a “large number” of vertical
gyroscope failures. The vertical gyroscopes and ADIs for which there were repair orders
14
were not sent solely to Goodrich; rather, PHI sent them to various facilities, including
Goodrich; Masco; Helicopter Support, Inc.; Bell Helicopter Textron; and Honeywell,
Inc.5
The evidence in Exhibit No. 21 does not suggest that there was a manufacturing
defect in a vertical gyroscope. Indeed, including ADIs within the list of removals,
replacements, and repairs does nothing to support Greene’s claim that there was a
manufacturing defect in a vertical gyroscope. The evidence in the exhibit could equally
suggest that there was a problem with an ADI. Indeed, counsel for Goodrich at oral
argument told us that nothing in Greene’s proofs ruled out the possibility that an ADI
malfunctioned. More significant, however, is the fact that Greene proffered no evidence
that the reason for the removal or repairs of the vertical gyroscopes was unusual.
Likewise, she proffered no evidence that the rate of replacement of vertical gyroscopes in
the PHI fleet differed from the replacement rate of vertical gyroscopes made by other
manufacturers.
Because of our uncertainty after studying the record, we expressed concern to
counsel at oral argument about the use of Greene’s data regarding vertical gyroscope and
ADI removals, replacements, and repairs. We directly asked counsel for both Goodrich
and Greene to direct us to the place in the record that would inform us as to the expected
5
It is unclear if Exhibit No. 21 shows that all vertical gyroscopes that PHI
removed were manufactured by Goodrich because the gyroscopes were sent to various
repair facilities.
15
useful life of a vertical gyroscope. Both counsel, however, informed us that the record is
devoid of such information.6 This strikes us as a conspicuous omission, given the fact
that without such a benchmark it is impossible to determine whether the vertical
gyroscopes removed, replaced, or repaired in the PHI fleet occurred at a statistically
significant rate compared with the average life expectancy of a vertical gyroscope. As
counsel for Goodrich correctly noted during oral argument, the failure to adduce such
evidence is correctly attributable to Greene – the party with the burden to prove a
manufacturing defect. Simply put, Greene’s statistics regarding the removal,
replacement, and repairs of vertical gyroscopes and ADIs in the PHI fleet are meaningless
and are not, without more, probative of a manufacturing defect.7
Greene’s evidence also consisted of Exhibit No. 6, comprising 211 pages of work
orders and inspection reports from Goodrich’s repair station in Austin, Texas. This
exhibit documented work orders Goodrich received from PHI for model VG-204 A/B
vertical gyroscopes along with details of the work Goodrich actually performed on each
6
The parties had an opportunity post-argument to respond to our concerns about
the lack of this information, but we received no response.
7
This case presents an important example of how the value of oral argument
cannot be understated. Oral argument allowed us to further delve into issues of concern
that were not adequately addressed by the parties in their briefs. “The intangible value of
oral argument is, to my mind, considerable. . . . [O]ral argument offers an opportunity for
a direct interchange of ideas between court and counsel. . . . Counsel can play a
significant role in responding to the concerns of the judges, concerns that counsel won’t
always be able to anticipate in preparing the briefs.” William H. Rehnquist, Oral
Advocacy: A Disappearing Art, 35 MERCER L. REV. 1015, 1021 (1984).
16
vertical gyroscope submitted to the repair station for evaluation. The documents in
Exhibit No. 6 detail work orders from PHI to Goodrich for the period November 1994
through April 1999. Two of the work orders and inspection reports within six months of
the accident show that PHI sent two model VG-204 A/B vertical gyroscopes from the
helicopter Greene was piloting, registration number N2743E, to Goodrich’s Texas
facility. The first work order, number FK956, was received by Goodrich on January 25,
1999. The reason listed on the work order for the vertical gyroscope being removed was
“#2 pitch kicks in flight.” The final inspection report by Goodrich on January 29, 1999,
lists as the reason for failure “carbon build-up on slip rings and brushes due to electrical
contact.” The inspection report states that Goodrich repaired the vertical gyroscope and
that it met manufacturer specifications when it was returned to PHI on January 29, 1999.
The second work order, number FT858, was received by Goodrich on April 13, 1999.
The reason listed on the work order for the vertical gyroscope being removed was, again,
“#2 pitch kicks in flight.” The final inspection report by Goodrich on April 16, 1999,
states “couldn’t verify customer complaint, unit performs normally.” Before the vertical
gyroscope was returned to PHI on April 16, 1999, the work performed on the unit was
listed on the final inspection report as “open checked unit, cleaned all slip ring and
brushes as a precaution, calibrated, tested and inspected to current mfg spec. . . .” This
exhibit likewise is not probative of a manufacturing defect because it does nothing to
suggest that any model VG-204 A/B vertical gyroscope listed in the series of work orders
was defective at the time it left Goodrich’s manufacturing plant.
17
Another piece of evidence further supports our conclusion that Greene failed to
prove that there was a manufacturing defect in a vertical gyroscope. Herlihy testified at
trial that it was his opinion that “the accident was a result of instrument confusion in the
cockpit created by the loss of vertical gyro input to the flying pilot’s A.D.I. or gyro
horizon.” PHI lead pilot Thomas Methvin, however, testified that even if one ADI failed
or was receiving incorrect information, Greene and/or pilot-in-command Jones should
have relied upon the other ADIs in the cockpit to safely fly or land the aircraft.
Additional testimony by Herlihy provided that the accident “had a number of factors that
caused it.” Herlihy testified that “the factors include two primary causes,” including the
weather and Herlihy’s opinion that “the helicopter experienced an instrument failure.”
Given the evidence that it would be possible for a pilot to navigate the helicopter if
an ADI failed; that multiple events could have caused the helicopter accident; and that
replacements of vertical gyroscopes on PHI’s helicopters, including the one piloted by
Greene and Jones, six months prior to the crash do not, standing alone, indicate a
gyroscope defect, Greene’s proofs were simply insufficient to show that there was a
manufacturing defect in a vertical gyroscope. Indeed, at no time did any witness identify
a defect in manufacture of model VG-204 A/B vertical gyroscopes.
e. Conclusion
Viewing the totality of the evidence at the conclusion of Greene’s proofs leads us
to conclude that the evidence amounted to “featureless generality.” See OLIVER WENDELL
HOLMES, JR., THE COMMON LAW 89 (Mark DeWolfe Howe ed., Little, Brown 1963)
18
(1881). In the absence of evidence that one possible explanation was more probable than
another, the jury was required to speculate as to whether there was a defect. It is well
established that a jury verdict based on speculation, supposition, or surmise is
impermissible:
Although the jury may draw reasonable inferences from the evidence of a defect in
manufacturing, it is incumbent on the plaintiff to introduce evidence that will
support a reasonable inference that the defect was the “probable” cause of the
accident as distinguished from a “possible” cause among other possibilities;
otherwise, the jury verdict is based upon speculation or surmise.
Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745, 747 (Ky. 1973). Our view of the
evidence indicates that, at best, Greene only showed at trial that it was possible there was
a manufacturing defect in a vertical gyroscope. She simply failed to satisfy her burden
that there was such a defect.
Because we conclude that the district court erred in failing to grant Goodrich’s
motion for judgment as a matter of law at the conclusion of Greene’s case, Goodrich’s
challenge to the district court’s denial of Goodrich’s motion for judgment as a matter of
law at the close of trial and the district court’s denial of Goodrich’s renewed motion for
judgment as a matter of law is moot.
B. Whether the District Court Erred in Granting Summary Judgment to Goodrich
on Greene’s Failure to Warn Claim
Greene argues in her cross-appeal that the district court erred when it granted
summary judgment to Goodrich on Greene’s failure to warn claims.
Greene argued that Goodrich breached its duty to warn users of aircraft that
19
contained a vertical gyroscope about the gyroscope’s manufacturing defects. Greene
relied on Herlihy’s opinion that Goodrich “had no central database structure . . . to track
malfunctions, to register employee concerns of gyro system weaknesses, or to
communicate horizontally between Grand Rapids manufacturing, quality assurance and
its field repair facilities.” Greene did not allege any violations of federal law with respect
to the failure to warn claim. She also did not cite any authority regarding standards that
encourage or require a company like Goodrich to maintain such a database.
In granting Goodrich’s motion for summary judgment with respect to the failure to
warn claim, the district court held that federal law preempts any state-law imposed duties
in the realm of aviation. The district court found it significant that Federal Aviation
Administration (FAA) guidelines do not propose or mandate a database like Herlihy
suggested Goodrich should maintain. In reaching its conclusion, the district court relied
on Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999). In Abdullah, the Court of
Appeals for the Third Circuit joined other circuits in recognizing that Congress intended
aviation safety to be exclusively federal in nature. Id. at 371. The Supreme Court has
stated that preemption may be inferred where “the pervasiveness of the federal regulation
precludes supplementation by the States, where the federal interest in the field is
sufficiently dominant, or where the object sought to be obtained by the federal law and
the character of obligations imposed by it reveal the same purpose.” Schneidewind v.
ANR Pipeline Co., 485 U.S. 293, 300 (1988) (internal quotations omitted). The Abdullah
court noted that “[t]he federal courts that adjudicated the first major cases involving the
20
[Federal Aviation Act] interpreted its legislative history as evincing Congress’s intent to
exercise supremacy over the field of aviation safety.” Abdullah, 181 F.3d at 369. The
legislative history of the Federal Aviation Act notes that:
[The purpose of the Federal Aviation Act was to give] [t]he Administrator of the
new Federal Aviation Agency full responsibility and authority for the advancement
and promulgation of civil aeronautics generally, including promulgation and
enforcement of safety regulations.
H.R. Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. 3741. The House Report also noted
that “[i]t is essential that one agency of government, and one agency alone, be responsible
for issuing safety regulations if we are to have timely and effective guidelines for safety
in aviation.” Id. at 3761. After analyzing this legislative history, the Abdullah court
concluded:
It follows from the evident intent of Congress that there be federal supervision of
air safety and from the decisions in which courts have found federal preemption of
discrete, safety-related matters, that federal law preempts the general field of
aviation safety.
Abdullah, 181 F.3d at 371. We agree with the Third Circuit’s reasoning in Abdullah that
federal law establishes the standards of care in the field of aviation safety and thus
preempts the field from state regulation. The district court did not err in concluding that
federal law preempted Greene’s state-law failure to warn claim.
C. Whether the District Court Erred in Excluding Evidence of Gyroscope
Repairs and Replacements Beyond a Six-Month Timeframe
Greene also argues in her cross-appeal that the district court erred by excluding
evidence of gyroscope repairs and replacements that occurred on PHI’s helicopters more
21
than six months prior to the crash. When examining a challenge to the exclusion of
evidence, we will not reverse the district court’s decision “unless necessary to do
‘substantial justice.’” Martin v. Heideman, 106 F.3d 1308, 1311 (6th Cir. 1997).
Greene does not adequately explain how evidence of gyroscope repairs and
replacements beyond a six-month time period before the crash would help her case.
Indeed, it appears as though such evidence is cumulative of the evidence she proffered
that indicated that there had been several replacements of vertical gyroscopes on PHI’s
helicopters. The district court correctly limited this type of evidence to a time period of
six months prior to the crash so as to prevent the introduction of unnecessary and
cumulative data for the jury’s consideration. Greene has failed to demonstrate how
reversing the district court’s evidentiary decision is necessary to do substantial justice.
III. CONCLUSION
An appellate court does not set aside a jury verdict with ease. Indeed, we
previously have recognized that a reviewing court should not lightly overturn a jury
verdict. See, e.g., Pratt v. Nat’l Distillers & Chem. Corp., 853 F.2d 1329, 1337 (6th Cir.
1988). Not all questions, however, can be put to a jury, and after a review of the record in
this case we conclude that we have an obligation to REVERSE the decision of the
district court and REMAND this case with instructions to enter judgment in favor of
Goodrich and to dismiss this case.
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R. GUY COLE, JR., concurring in part and dissenting in part.
Regarding all but one of the claims presented in this appeal, I concur in the judgment of
the Court. However, I write separately to clarify my concerns with Greene’s manufacturing
defect claim and to respectfully dissent from the majority’s opinion regarding Greene’s failure to
warn claim.
I.
A product failure cannot always be equated to a product defect, and this, as I see it, is the
fatal flaw in Greene’s argument. First, to prevail on a manufacturing defect claim under a strict
liability theory, the plaintiff must show that a manufacturing error, resulting in an unreasonably
dangerous condition, was the substantial cause of the plaintiff’s injury. Worldwide Equip., Inc.
v. Mullins, 11 S.W.3d 50, 55-58 (Ky. App. 1999). As the majority notes, Greene presented four
items of evidence in support of her claim that a vertical gyroscope failure was the probable cause
of the crash: (1) Mr. Greene’s statement immediately prior to the crash that his “gyro just quit”;
(2) evidence that in the six-month period before the crash, several gyroscopes in PHI’s
helicopters, including in the one piloted by Mr. Greene, were replaced; (3) evidence that the
crash kinematics did not match what the helicopter’s instruments were reading at the time of the
crash; and (4) Herlihy’s testimony that, in his opinion, the vertical gyroscope failed on the night
of the accident because, based on the remains of the ADI face plate and light panels from the
crash, a vertical gyroscope failure was more likely than a wiring failure between the gyroscope
and its ADI, or a failure of the ADI. With the exception of the second item of evidence, I find
that the sum of Greene’s circumstantial evidence was sufficient to support the jury’s conclusion
that the vertical gyroscope failed.
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However, Greene presented no evidence showing that this failure was the result of a
manufacturing defect. Because the gyroscope was destroyed in the crash, Greene could not
examine it for a manufacturing defect. Her argument has essentially been: the gyroscope failed
and therefore there must have been a manufacturing defect. This type of res ipsa loquitur
reasoning has been embraced by Kentucky courts in manufacturing defect cases. See Embs v.
Pepsi-Cola Bottling Co. of Lexington, Kentucky, Inc., 528 S.W.2d 703, 706 (Ky. App. 1975)
(reversing a dismissal where the plaintiff was injured by an exploding beverage bottle, the debris
of which was unrecoverable, because bottles do not ordinarily explode in the course of normal
handling); c.f. Perkins v. Trailco Mfg. and Sales Co., 613 S.W.2d 855, 858 (Ky. 1981) (reversing
a dismissal and noting that circumstantial evidence was enough to prove a defect where a new
tractor trailer collapsed while it was being properly used). Nevertheless, to be entitled to this res
ipsa loquitur-type inference, the plaintiff has the burden of showing that the product
malfunctioned in a way unlikely to occur if the product had been properly made, and that no
outside forces caused the malfunction. See Prosser, Wade & Schwartz, Torts, 767 (9th ed.
1994); Dan B. Dobbs, The Law of Torts, 1003 (2001). Unfortunately for Greene, she did not
show that it was out of the ordinary for a gyroscope to fail. Goodrich presented evidence that
vertical gyroscopes are not replaced on any set time table. Rather, gyroscopes are replaced “on
condition,” meaning that they are replaced once they show a discrepancy or failure. These
discrepancies or failures occur during flight, and usually, pilots compensate by relying on the
other gyroscopes in the helicopter. The uncontroverted evidence showed that failures occur and
that pilots are trained never to rely solely on one gyroscope for this reason. Given this, Greene
has not proven that a gyroscope failure is an unexpected event such that a res ipsa loquitur
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inference would be warranted. Accordingly, there was no evidence that the gyroscope failure
was a “manufacturing defect,” and the jury’s outcome to the contrary must be set aside.
Although the majority goes further to say that the gyroscope failure may not have caused
the crash, I am not convinced that a gyroscope failure, while usually a manageable event, did not
prove fatal in the unique circumstances of this crash. It may be that gyroscopes in certain
circumstances are unavoidably unsafe products, see RESTATEMENT (SECOND) OF TORTS § 402A,
Comment K, however, all the evidence presented indicates that users are aware of their unsafe
attributes. Without showing a probability that Mr. Greene’s gyroscope was defective as
compared to other gyroscopes produced by Goodrich, Greene’s claim must fail.8 Therefore, I
respectfully concur in the result reached by the majority as to Goodrich’s motion for judgment as
a matter of law.
II.
I now turn to Greene’s cross-appeal regarding her failure to warn claim. The majority
opinion affirms the district court’s grant of summary judgment to Goodrich, stating that Greene’s
state law failure to warn claim is preempted by federal law. A federal law may preempt a state
law either expressly or implicitly. Garcia v. Wyeth-Ayerst Labs., 385 F.3d 961, 965 (6th Cir.
2004). When Congress enacted the Federal Aviation Act (“FAA”), it chose several specific
8
I recognize the difficulty of proving a manufacturing defect in a situation where
the product is destroyed. This is why the res ipsa loquitur inference could prove
important in many cases. Here, however, there is an additional complication, because
the product, by all accounts, is sometimes expected to fail. If Greene had presented
evidence on the expected rate of failure in gyroscopes, she perhaps might have been
able to show that a user would not have had any expectation that a relatively new
gyroscope would fail, and therefore that a manufacturing defect was the likeliest
possibility. Greene may have an argument that Goodrich has the burden to collect and
provide consumers with information regarding the gyroscope’s failure rate. See infra.
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areas in which to explicitly prohibit the States from enacting regulations relating to aviation
safety. See 49 U.S.C. § 41713(b)(1) (preempting the States from enacting regulations regarding
the “price, route, or service of an air carrier that may provide air transportation”); 49 U.S.C. §
44703(i)(2) (preempting the States from enacting regulations imposing liability on any person
for “furnishing or using records” of employment); 49 U.S.C. § 44921(f)(2) (preempting the
States from regulating when a flight deck officer may carry a firearm). I can find no
congressional language in the FAA which would expressly preempt Greene’s state law-based
failure to warn claim in this case.
When Congress fails to use express preemption language, a federal law may still preempt
state law if the federal law thoroughly occupies the legislative field in question. This Court has
previously held that:
Implied preemption occurs if a scheme of federal regulation is so pervasive as to
make reasonable the inference that Congress left no room for the States to
supplement it, if the Act of Congress touches a field in which the federal interest
is so dominant that the federal system will be assumed to preclude enforcement of
state laws on the same subject, or if the goals sought to be obtained and the
obligation imposed reveal a purpose to preclude state authority . . . a court must
begin with the assumption that a state law is valid and should be reluctant to
resort to the Supremacy Clause.
Garcia, 385 F.3d at 965.
Under this implied preemption reasoning, the district court determined that federal law
26
preempted state law on the issue of aviation safety duties. The district court cited Abdullah v.
American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999) in support of this proposition. As the
majority notes, the Third Circuit in Abdullah did a close study of the legislative history of the
FAA. In Abdullah, passengers who were injured during a flight sued the airline for operating the
aircraft in a manner that resulted in severe turbulence. 181 F.3d at 365. The court stated that:
To effectuate this broad authority to regulate air safety, the Administrator of the
FAA has implemented a comprehensive system of rules and regulations, which
promotes flight safety by regulating pilot certification, pilot pre-flight duties, pilot
flight responsibilities, and flight rules.
Id. at 369. The court, noting that federal regulations already exist which lay out the appropriate
standard of care that was owed to passengers by pilots and flight crews, concluded that the FAA
preempted any standards of care that the State may impose on flight operators. Id. at 371. To
the extent that we choose to rely on Abdullah as persuasive authority, I believe that the facts of
the instant case are readily distinguishable. Abdullah can truly only be relied on for the limited
proposition that a State’s standard of care for aviation personnel is preempted by the FAA. The
situation before us is not like that in Abdullah, because in this case, there are no federal
regulations which lay out the exact standard of care. Therefore, I would not expand the
proposition in Abdullah to apply to commercial enterprises that manufacture aviation equipment.
Furthermore, this Court has previously chosen to apply preemption narrowly with regards
to the FAA. In Gustafson v. City of Lake Angelus, 76 F.3d 778, 786 (6th Cir. 1996), we stated
that Congress had preempted local law regarding navigable airspace, noise control, and aircraft
27
safety, but went on to hold that the FAA did not preempt local regulations/ordinances regarding
ground space to be used for aircraft landing sites. Id. at 789. Thus, our circuit has traditionally
shown a proper amount of restraint and caution before finding State and local laws preempted by
federal law. Under this regime, I cannot assume that the FAA implicitly preempts any State or
common law-imposed duties here. Admittedly, the FAA is involved in overseeing the quality
control of certain aviation equipment; however, neither the appellant nor the majority have
proffered any reason why a State’s more stringent duty of care in the failure to warn context
could not supplement rather than frustrate the FAA. Consequently, I respectfully dissent from
the majority’s conclusion that Greene’s failure to warn claim was properly dismissed.
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