O'Brien v. Cessna Aircraft Co.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
Patrick O’Brien, appellant, and Suburban A ir Freight, Inc.,
and Liberty Mutual I nsurance Company, appellees,
v. Cessna A ircraft Company and Goodrich
A erospace Company, appellees.
___ N.W.2d ___
Filed November 3, 2017. No. S-15-1212.
1. Products Liability. The central question in any claim based on strict
liability in tort is whether the product was defective.
2. ____. Defects usually fall into one of three categories: design defects,
manufacturing defects, or warning defects.
3. Products Liability: Expert Witnesses: Circumstantial Evidence:
Proof. The best means of proving a defect is expert testimony pointing
to a specific defect. But in lieu of pleading and proving a specific defect,
plaintiffs have been permitted to prove an unspecified defect in the war-
ranted product through circumstantial evidence using what is commonly
referred to as the “malfunction theory.”
4. Products Liability: Proof. Under the malfunction theory, also some-
times called the indeterminate defect theory or general defect theory, a
plaintiff may prove a product defect circumstantially, without proof of
a specific defect, when (1) the incident causing the harm was of a kind
that would ordinarily occur only as the result of a product defect and (2)
the incident was not, in the particular case, solely the result of causes
other than a product defect existing at the time of sale or distribution.
5. ____: ____. The malfunction theory, which permits a plaintiff to prove
a product defect circumstantially without proof of any specific defect, is
not available when specific defects are alleged.
6. Pretrial Procedure: Appeal and Error. Decisions regarding discovery
are directed to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
7. Pretrial Procedure: Proof: Appeal and Error. The party asserting
error in a discovery ruling bears the burden of showing that the ruling
was an abuse of discretion.
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Nebraska Supreme Court A dvance Sheets
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
8. Judgments: Words and Phrases. A judicial abuse of discretion exists
when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.
9. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
10. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
11. Evidence: Appeal and Error. In a civil case, the admission or exclu-
sion of evidence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.
12. Trial: Evidence: Appeal and Error. Because authentication rulings
are necessarily fact specific, a trial court has discretion to determine
whether evidence has been properly authenticated. An appellate court
reviews the trial court’s ruling on authentication for abuse of discretion.
13. Judgments: Words and Phrases: Appeal and Error. An abuse of
discretion, warranting reversal of a trial court’s evidentiary decision on
appeal, occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence.
14. Products Liability: Proof. A plaintiff in a strict liability case may rely
on evidence of other similar accidents involving the product to prove
defectiveness, but the plaintiff must first establish that there is a substan-
tial similarity of conditions between the other accidents and the accident
that injured the plaintiff.
15. Products Liability: Proof: Notice. In a strict liability case, the propo-
nent of the evidence bears the burden to establish the similarity between
the other accidents and the accident at issue before the evidence is
admitted. The proffered evidence must satisfy the substantial similar-
ity test for it to be properly admitted into evidence, whether to prove
defect, causation, or knowledge/notice. Substantial similarity is satisfied
when the prior accidents or occurrences happened under substantially
the same circumstances and were caused by the same or similar defects
and dangers.
16. Trial: Evidence: Appeal and Error. The exclusion of evidence is ordi-
narily not prejudicial where substantially similar evidence is admitted
without objection.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
17. Trial: Evidence: Testimony. Where the information contained in an
exhibit is, for the most part, already in evidence from the testimony of
witnesses, the exclusion of the exhibit is not prejudicial.
18. Trial: Evidence: Juries. A motion in limine is only a procedural step to
prevent prejudicial evidence from reaching the jury. It is not the office
of such motion to obtain a final ruling upon the ultimate admissibility of
the evidence.
19. Trial: Evidence: Proof: Appeal and Error. Because overruling a
motion in limine is not a final ruling on the admissibility of evidence
and does not present a question for appellate review, a question concern-
ing the admissibility of evidence which is the subject of a motion in
limine must be raised and preserved for appellate review by an appropri-
ate objection or offer of proof during trial.
20. Rules of Evidence. Authentication or identification of evidence is a
condition precedent to its admission and is satisfied by evidence suf-
ficient to prove that the evidence is what the proponent claims.
21. Trial: Evidence. A court must determine whether there is sufficient
foundation evidence for the admission of physical evidence on a case-
by-case basis.
22. Rules of Evidence: Proof. Neb. Rev. Stat. § 27-901 (Reissue 2016)
lists, by way of illustration, 10 means of adequately authenticating a
document.
23. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion is a formal act done in the course of judicial proceedings which is
a substitute for evidence, thereby waiving or dispensing with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by the opponent is true.
24. Pleadings: Evidence. Similar to a stipulation, a judicial admission must
be unequivocal, deliberate, and clear.
25. Rules of Evidence: Hearsay. Hearsay is not admissible except as pro-
vided by the Nebraska Evidence Rules.
26. Rules of Evidence: Hearsay: Proof. The party seeking to admit a busi-
ness record under Neb. Rev. Stat. § 27-803(5)(a) (Reissue 2016) bears
the burden of establishing foundation under a three-part test. First, the
proponent must establish that the activity recorded is of a type that
regularly occurs in the course of the business’ day-to-day activities.
Second, the proponent must establish that the record was made as part
of a regular business practice at or near the time of the event recorded.
Third, the proponent must authenticate the record by a custodian or
other qualified witness.
27. Trial: Witnesses: Proof. In order to predicate error upon a ruling of
the court refusing to permit a witness to testify, or to answer a specific
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
question, the record must show an offer to prove the facts sought to
be elicited.
28. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
29. Jurisdiction: States. When there are no factual disputes regarding state
contacts, conflict-of-law issues present questions of law.
30. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
31. Courts: Jurisdiction: States. In answering any choice-of-law question,
a court first asks whether there is any real conflict between the laws of
the states.
32. Jurisdiction: States. An actual conflict of law exists when a legal issue
is resolved differently under the law of two states.
33. Constitutional Law: Damages: Penalties and Forfeitures. Under
Nebraska law, punitive, vindictive, or exemplary damages contravene
Neb. Const. art. VII, § 5, and thus are not allowed in this jurisdiction.
34. Jurisdiction: States: Contracts: Torts. Once a court determines there
is a conflict of law between two states, the next step is to classify the
nature of the specific conflict issue, because different choice-of-law
rules apply depending on whether the cause of action sounds in contract
or in tort.
35. Torts: Appeal and Error. To resolve conflicts of law involving tort
liability, the Nebraska Supreme Court consistently has applied the
Restatement (Second) of Conflict of Laws § 146 (1971).
36. Jury Instructions. Whether the jury instructions given by a trial court
are correct is a question of law.
37. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested instruction, an appellant
has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the tendered instruction.
38. Jury Instructions: Appeal and Error. Jury instructions do not consti-
tute prejudicial error if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and evidence.
39. Trial: Jury Instructions: Negligence. A trial court is not required to
submit repetitious allegations of the same act of negligence.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
40. Torts: Jury Instructions. The Nebraska Supreme Court has consist­
ently condemned the practice of instructing the jury in haec verba and,
instead, has placed the duty squarely upon the trial court to properly
analyze, summarize, and submit the substance of the numerous allega-
tions of negligence in tort petitions.
41. Costs: Appeal and Error. The decision of a trial court regarding taxing
of costs is reviewed for an abuse of discretion.
42. Costs. The costs of litigation and expenses incident to litigation may
not be recovered unless provided by statute or a uniform course of
procedure.
43. Torts: Costs. Under Neb. Rev. Stat. § 25-1710 (Reissue 2016), a suc-
cessful defendant in a tort action is ordinarily entitled to an award of
costs as a matter of course upon a judgment in his or her favor.
44. Depositions: Costs. Deposition costs are properly taxable and recover-
able under Neb. Rev. Stat. § 25-1710 (Reissue 2016).
45. ____: ____. Unless it appears that the depositions were not taken in
good faith or were actually unnecessary, costs of taking them are prop-
erly taxable under Neb. Rev. Stat. § 25-1710 (Reissue 2016), even if
the depositions were not used at trial. The questions of good faith and
reasonable necessity are for the trial court to determine.
Appeal from the District Court for Douglas County: Leigh
A nn R etelsdorf, Judge. Affirmed.
Arthur A. Wolk, Bradley J. Stoll, and Cynthia M. Devers,
of Wolk Law Firm, David A. Domina, of Domina Law Group,
P.C., L.L.O., and Robert W. Mullin, of Houghton, Bradford &
Whitted, P.C., L.L.O., for appellant.
John C. Nettels, Jr., and Robin K. Carlson, of Stinson,
Leonard & Street, L.L.P., and Bryan S. Hatch, of Likes,
Meyerson & Hatch, L.L.C., for appellee Cessna Aircraft
Company.
Elizabeth B. Wright and Andrew H. Cox, of Thompson
Hine, L.L.P., and William R. Johnson and Brian J. Brislen,
of Lamson, Dugan & Murray, L.L.P., for appellee Goodrich
Aerospace Company.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
Stacy, J.
I. NATURE OF CASE
This tort action was filed by a pilot who was injured when
the plane he was flying crashed on approach to the airport in
Alliance, Nebraska. After a 4-week trial, the jury returned a
general verdict for the defendants. The pilot appeals, assert-
ing 65 assignments of error. We affirm the judgment of the
district court.
II. BACKGROUND
Patrick O’Brien was employed as a commercial pilot flying
mail overnight between Alliance, North Platte, and Omaha,
Nebraska. In February 2007, he was seriously injured when
the Cessna 208B Caravan he was flying crashed through the
roof of a metal building and into a utility pole during a non-
precision approach to the Alliance airport. The impact occurred
at approximately 2:25 a.m. in heavy fog and below freez-
ing temperatures; night instrument meteorological conditions
prevailed. O’Brien has no memory of the crash or any of his
actions before the crash. He theorizes that ice accumulated on
the aircraft during flight, resulting in an “ice contaminated tail
stall” (ICTS) that caused the crash.
O’Brien sued the aircraft’s designer and manufacturer,
Cessna Aircraft Company (Cessna), as well as the designer
and manufacturer of the aircraft’s pneumatic deicing system,
Goodrich Aerospace Company (Goodrich), asserting claims of
strict liability, negligence, and fraudulent misrepresentation.
Cessna and Goodrich denied O’Brien’s claims and alleged the
accident was the result of O’Brien’s negligent operation and
misuse of the aircraft.
The case was tried to a jury over a period of 4 weeks. The
jury returned a general verdict for the defendants, finding
O’Brien had not met his burden of proof on any of his claims.
Rather than detail all of the evidence offered at trial, we sum-
marize the evidence and set out the general theories advanced
by the parties.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
1. Cessna 208B Caravan
At the time of the crash, O’Brien was flying a Cessna 208B
Caravan (hereinafter Model 208B) owned and maintained by
his employer. The Model 208B is a single-engine, turbo-
prop, high-wing airplane. The Model 208B was certified by
the Federal Aviation Administration (FAA) for “Flight Into
Known Icing Conditions.” To obtain this certification, an air-
craft designer must show that the aircraft can operate safely in
icing conditions. The Model 208B that O’Brien was flying was
configured for such conditions and to carry cargo.
The Model 208B was designed with pneumatic deicing
“boots,” and the aircraft O’Brien was flying was equipped
with such boots. This deicing system uses hot “bleed air” from
the aircraft’s engine to inflate corrugated rubberlike boots
affixed to multiple parts of the aircraft. As the boots inflate and
expand, accumulated ice is broken up and shed. The ­deicing
boots are manually activated by the pilot using a switch in
the cockpit.
When Cessna was designing the Caravan models, it consid-
ered several different ice-protection systems, including TKS.
TKS is an anti-icing system that extrudes an alcohol/glycol-
based fluid through a thin mesh to prevent ice from forming.
Cessna had used a TKS system on a different plane model, but
chose to use pneumatic deicing boots for the Caravan models,
including the Model 208B.
2. O’Brien’s Theory
O’Brien’s experts testified that his aircraft suffered ICTS
while flying through light-to-moderate icing conditions.
Accident scene photographs taken a few hours after the
crash, supported by testimony at trial, showed ice accumu-
lation of anywhere from one-tenth to one-fourth of an inch
of ice on the leading edge of the wings, and approximately
one-eighth of an inch of ice on the horizontal tail. Witnesses
testified that the horizontal tail keeps the aircraft balanced in
flight by creating a downward lift and preventing the nose of
the aircraft from pitching down. Generally speaking, when
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
enough ice accumulates on the horizontal tail to disrupt the
downward lift, ICTS can occur and the tail cannot keep the
aircraft upright.
O’Brien cited various design defects in the Model 208B
and its pneumatic deicing system that he claimed caused his
aircraft to suffer ICTS. Specifically, he claimed the deicing
system on the Model 208B was defectively designed and
unreasonably dangerous in that the deicing boots provided
insufficient coverage and the deicing system lacked a water
separator to prevent contaminants from entering and affecting
its operation.
O’Brien also claimed the crash was caused by the negli-
gence of Cessna and Goodrich in selecting, designing, and
testing the deicing system. He claimed, summarized, they were
negligent in selecting pneumatic deicing boots rather than a
TKS anti-icing system for the Caravan models, in failing to
install a water separator for the deicing boots, in failing to
provide a filter for the bleed air system, in failing to provide
boots with adequate coverage for the conditions in which
the aircraft would be flown, in failing to properly test the
Model 208B for flight in icing conditions, in failing to warn
operators and owners that the Model 208B was unsuitable for
operating in icing conditions and suffers ICTS, and in failing
to provide adequate instructions for operating the aircraft in
icing conditions.
O’Brien also claimed Cessna fraudulently misrepresented
that if the Model 208B was operated in accordance with
the “Pilots Operating Handbook and FAA Approved Airplane
Flight Manual,” it was safe to fly in icing conditions, when it
knew it was not. O’Brien alleged he relied on this false repre-
sentation, which proximately caused his crash and injuries.
3. Theory of Cessna and Goodrich
Cessna and Goodrich claimed there was no credible evidence
that O’Brien’s aircraft experienced ICTS and suggested the
crash was caused by O’Brien’s own negligence in descending
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
below the minimum descent altitude before he had the run-
way environment in sight. Defense experts testified that the
crash resulted from “controlled flight into terrain” caused by
O’Brien’s inadvertent descent below the minimum descent alti-
tude, at night, in a single-pilot environment, due to distraction
and heavy fog.
To counter evidence that the aircraft experienced a tail
stall, the defense offered evidence that O’Brien’s vertical and
horizontal flight path, although below the minimum descent
altitude, appeared to be under control and lined up with
the runway. Additionally, the defense suggested the aircraft’s
4-degree angle of impact into the metal building and the simi-
lar angle of the aircraft’s path through the roof of the building
indicated the aircraft was under O’Brien’s control at the time
of impact.
Cessna and Goodrich denied that the crash was caused by
any malfunction or defect in the pneumatic deicing boots.
They presented evidence that the weather conditions would not
have required activation of the deicing boots, and they offered
circumstantial evidence that O’Brien had not cycled the boots
before the crash.
Cessna’s expert testified that the pilots operating handbook
indicates a pilot should cycle the boots as a matter of course
immediately before landing and, depending on the type of
ice, whenever one-fourth to three-fourths of an inch of ice
has accumulated on the wing’s leading edge. O’Brien has
no memory of using the deicing boots before the crash, but
testified it was his usual practice to wait until at least one-
half of an inch of ice had accumulated on the wing’s leading
edge before activating the boots. A defense expert performed
an ice accretion analysis using the weather data supplied by
O’Brien’s weather expert and determined that approximately
one-tenth of an inch of ice would have accumulated on the
wings’ leading edges before the crash. The defense also relied
on accident scene photographs showing that the protected
surfaces of the plane had approximately one-tenth of an inch
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
of ice, and roughly the same amount of ice was found on the
unprotected surfaces, suggesting O’Brien had not cycled the
boots before impact.
4. Jury Verdict and A ppeal
The case was submitted to the jury on O’Brien’s claims
of negligence and strict liability against both Cessna and
Goodrich, and on O’Brien’s claim of fraudulent misrepresenta-
tion against Cessna. The jury deliberated for approximately 8
hours before returning a general verdict for the defendants. The
district court accepted the verdict, entered judgment thereon
for the defendants, and directed O’Brien to pay the costs of
the action. After an evidentiary hearing on costs, the court
found O’Brien should be ordered to pay costs in the amount
of $35,701.68 and entered judgment accordingly. O’Brien
timely appealed.
III. ASSIGNMENTS OF ERROR
O’Brien assigns 65 errors, which we condense into 10.
O’Brien assigns, renumbered and restated, that the district
court erred in (1) excluding the testimony of his expert regard-
ing 32 “substantially similar” plane crashes; (2) failing to
enforce its discovery order compelling Cessna to produce
flight test data; (3) excluding as hearsay a copy of a 2006
Airworthiness Directive affecting the Caravan models; (4)
excluding exhibits showing Cessna concealed information
regarding the “Caravan’s susceptibility to ICTS”; (5) excluding
evidence that after the crash, Cessna changed the design of the
Caravan models from one which used pneumatic deicing boots
to one which used an anti-icing system; (6) excluding multiple
documents Goodrich marked as “confidential”; (7) excluding
the opinion testimony of O’Brien’s radar reconstruction expert;
(8) concluding that Nebraska law applied to the issue of puni-
tive damages rather than Kansas law; (9) refusing to instruct
the jury using O’Brien’s tendered instruction; and (10) taxing
excessive costs to O’Brien.
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
IV. ANALYSIS
1. O’Brien Cannot R ely on M alfunction
Theory to Infer Unspecified Defect
In addition to presenting evidence of specific design defects
in the deicing system of the Model 208B, O’Brien sought
to present circumstantial evidence that the Model 208B was
defective because it was “susceptible to ICTS.” Many of
O’Brien’s assignments of error include the argument that he
was prevented from showing the Model 208B was “susceptible
to ICTS” or had a “propensity to suffer ICTS.”1
Both before the district court and on appeal, Cessna argued
that O’Brien’s “susceptibility theory” identifies no specific
defect and “is so vague as to be meaningless.”2 The trial court
did not instruct the jury on O’Brien’s “susceptibility theory,”
reasoning in part that it had not been sufficiently pled. Because
so many of O’Brien’s assigned errors include the argument that
he should have been permitted to show that the Model 208B
was “susceptible to ICTS,” we address the viability of this
theory as a threshold matter.
[1-4] The central question in any claim based on strict
liability in tort is whether the product was defective.3 Defects
usually fall into one of three categories: design defects, manu-
facturing defects, or warning defects.4 The best means of
proving a defect is expert testimony pointing to a specific
defect.5 But in lieu of pleading and proving a specific defect,
we have—at least in the context of an implied warranty case—
permitted plaintiffs to prove an unspecified defect in the war-
ranted product through circumstantial evidence using what is
1
E.g., replacement brief for appellant at 26.
2
Brief for appellee Cessna at 21.
3
See, Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776
(2015); Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244
(2003).
4
Roskop Dairy v. GEA Farm Tech., supra note 3.
5
Genetti v. Caterpillar, 261 Neb. 98, 621 N.W.2d 529 (2001).
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commonly referred to as the “malfunction theory.”6 We have
described the rationale and application of the malfunction
theory as follows:
The malfunction theory is based on the same principle
underlying res ipsa loquitur, which permits a fact finder to
infer negligence from the circumstances of the incident,
without resort to direct evidence of the wrongful act.
Under the malfunction theory, also sometimes called
the indeterminate defect theory or general defect theory,
a plaintiff may prove a product defect circumstantially,
without proof of a specific defect, when (1) the incident
causing the harm was of a kind that would ordinarily
occur only as the result of a product defect and (2) the
incident was not, in the particular case, solely the result
of causes other than a product defect existing at the time
of sale or distribution.7
This court has addressed the natural limitations of the mal-
function theory and emphasized it should be applied with
caution:
The malfunction theory should be utilized with the
utmost of caution. Although some circumstances may
justify the use of the malfunction theory to bridge the
gap caused by missing evidence, the absence of evidence
does not make a fact more probable but merely lightens
the plaintiff’s evidentiary burden despite the fact that
the missing evidence might well have gone either way,
and this rationale is too often subject to misapplica-
tion by courts in situations in which evidence is actu-
ally available.
....
The malfunction theory is narrow in scope. The mal-
function theory simply provides that it is not neces-
sary for the plaintiff to establish a specific defect so
6
Roskop Dairy v. GEA Farm Tech., supra note 3.
7
Id. at 174, 871 N.W.2d at 796.
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long as there is evidence of some unspecified dangerous
condition or malfunction from which a defect can be
inferred—the malfunction itself is circumstantial evi-
dence of a defective condition. The malfunction theory
does not alter the basic elements of the plaintiff’s burden
of proof and is not a means to prove proximate cause
or damages.8
We understand O’Brien’s argument that the Cessna Caravan
models are “susceptible to ICTS” as an attempt to prove an
unspecified or general defect in the aircraft through circum-
stantial evidence. This court has not extended the malfunc-
tion theory into the context of strict liability product defect
claims.9 Assuming without deciding the theory can be used
in a strict liability case, it is unavailable to O’Brien here for
two reasons: (1) He did not plead such a theory and (2) the
applicability of such a theory is negated by his assertion of
specific defects.
A plaintiff who wishes to rely on the malfunction theory
to establish an unspecified defect must plead and prove that
(1) the incident causing the harm was of a kind that would
ordinarily occur only as the result of a product defect and (2)
the incident was not, in the particular case, solely the result
of causes other than a product defect existing at the time of
sale or distribution.10 O’Brien’s amended complaint included
no such allegations and, instead, identified a myriad of very
specific design defects that allegedly caused the aircraft to
crash. Given the nature of the crash, it is doubtful O’Brien
could satisfy either factor of the malfunction theory, but his
failure to plead the malfunction theory at all prevents him from
relying on it to prove a nonspecific defect that the aircraft was
“susceptible to ICTS.”
8
Id. at 174-75, 871 N.W.2d at 796-97.
9
See Shuck v. CNH America, LLC, 498 F.3d 868 (8th Cir. 2007) (discussing
Nebraska law on strict liability product defect claims).
10
Roskop Dairy v. GEA Farm Tech., supra note 3.
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O’BRIEN v. CESSNA AIRCRAFT CO.
Cite as 298 Neb. 109
More importantly, in a case such as this where the plain-
tiff pleads specific defects, the malfunction theory is simply
unavailable. As we observed recently:
[W]e have found little case law specifically address-
ing whether the malfunction theory applies when there
is no loss of evidence or when there is an allegation of
a specific defect, [but] we find no cases that have done
so. And we observe that the related doctrine of res ipsa
loquitur does not apply when specific acts of negligence
are alleged or there is evidence of the precise cause of
the accident.11
[5] We now expressly hold what we previously observed:
The malfunction theory, which permits a plaintiff to prove a
product defect circumstantially without proof of any specific
defect, is not available when specific defects are alleged. A
plaintiff cannot simultaneously rely on the malfunction theory
to establish an unspecified defect and, at the same time, point
to evidence of specific defects.
As such, to the extent O’Brien has assigned error to various
trial court rulings excluding evidence related to the general
theory that the Cessna Caravan models are “susceptible to
ICTS,” all such assignments are without merit and warrant no
additional discussion.
2. Discovery Ruling
O’Brien assigns that the district court erred in failing to
enforce a discovery order. His argument relates to two separate
discovery rulings; O’Brien asserts the first discovery ruling
was erroneous and the second ruling illustrates how he was
prejudiced. We summarize both discovery rulings below and
find no abuse of discretion.
(a) Standard of Review
[6,7] Decisions regarding discovery are directed to the dis-
cretion of the trial court, and will be upheld in the absence of
11
Id. at 179, 871 N.W.2d at 799.
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an abuse of discretion.12 The party asserting error in a discov-
ery ruling bears the burden of showing that the ruling was an
abuse of discretion.13
(b) Discovery Rulings
Early in the case, O’Brien asked Cessna to produce all the
data which was recorded on the flight data recording equipment
on board aircraft “N208LP,” which number is the FAA regis-
tration number assigned to one of the prototypes of Cessna’s
Caravan models. The requested flight test data was stored on
magnetic tapes onto which Cessna had recorded raw telemetry
data from Caravan test flights in the 1980’s. The court ordered
production of the magnetic tapes, and Cessna copied the raw
data from the magnetic tapes and produced it to O’Brien.
O’Brien then moved for an order compelling Cessna to con-
vert the raw flight test data into a different format and moved
for sanctions. The court overruled O’Brien’s motion, including
the request for sanctions, but it ordered Cessna to produce a
compact disc of flight test data that had been converted for use
by Cessna’s expert. The court also invited O’Brien’s counsel
to bring the matter back before the court if he believed addi-
tional converted flight test data existed. And while the court
did not require Cessna to convert all of the raw flight test data
into a different format, it did not foreclose the possibility of
such an order in the future, explaining:
The Court declines to order Cessna to convert all raw
flight test data into readable format at this time. Instead,
Cessna will produce a recently located CD containing
flight test data. Once [O’Brien has] had an opportunity
to review the CD, [he] may request a hearing or further
telephone conference, if needed.
The record does not show that O’Brien followed up with either
Cessna or the district court on this issue.
12
Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016); Breci v.
St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
13
Id.
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Later, after the deadline for completing expert discovery
passed, Cessna moved to exclude the testimony of one of
O’Brien’s experts on the ground O’Brien had not produced his
expert for deposition despite repeated requests from Cessna. In
response, O’Brien claimed his expert was not able to complete
his work because he had not seen the disputed Cessna flight
test data. The district court sustained Cessna’s motion to limit
the expert’s testimony, but advised counsel it would recon-
sider its decision if O’Brien could show that Cessna’s delay in
producing the flight test data had, in fact, delayed O’Brien’s
expert’s work. The record does not show that O’Brien took any
further action on the issue.
On appeal, O’Brien assigns that the district court erred by
failing to enforce its order compelling Cessna to produce flight
test data. He contends he was “deprived” of converted flight
test data because the “court failed to enforce its order” compel-
ling discovery. O’Brien claims he was prejudiced because his
expert witnesses needed the converted data to, among other
things, prove “ICTS susceptibility.”
(c) No Abuse of Discretion
To put this particular discovery dispute in context, we note
the trial court heard and ruled upon at least 40 motions regard-
ing various discovery issues. In regard to the discovery dis-
pute over converting the raw flight test data, O’Brien argues
on appeal that the trial court “fail[ed] to assure disclosure”14
of the data by imposing discovery sanctions. We see nothing
in the record that suggests the court abused its discretion on
this issue.
[8] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition.15 Here, the court initially
14
Replacement brief for appellant at 43.
15
Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).
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ordered Cessna to produce the raw flight test data, and Cessna
complied. When O’Brien later asked that Cessna be ordered
to convert all the flight test data into a different format, the
court conditionally denied the motion, but ordered Cessna to
turn over the flight test data that already had been converted
and invited O’Brien’s counsel to request further hearing on the
issue once it had an opportunity to review that information.
O’Brien’s trial counsel took no further action. We cannot con-
strue counsel’s failure to follow up on the court’s invitation as
an abuse of discretion by the trial court.
3. Evidentiary Rulings
O’Brien assigns error to many of the trial court’s evidentiary
rulings. We address each in turn, but first we set out the stan-
dards by which we review such rulings on appeal.
(a) Standard of Review
[9] A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
that discretion.16
[10] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews
de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds.17
[11] In a civil case, the admission or exclusion of evidence
is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party.18
[12] Because authentication rulings are necessarily fact
specific, a trial court has discretion to determine whether
16
Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).
17
Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
18
Hartley v. Metropolitan Util. Dist., supra note 16.
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evidence has been properly authenticated.19 An appellate court
reviews the trial court’s ruling on authentication for abuse
of discretion.20
[13] An abuse of discretion, warranting reversal of a trial
court’s evidentiary decision on appeal, occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence.21
(b) Evidence of Other Accidents
Cessna moved in limine to prevent O’Brien’s expert from
testifying about 32 accidents involving other Model 208B air-
craft. After a 3-day hearing during which the court received
testimony and exhibits regarding each of the other accidents,
the court excluded evidence of the other accidents, finding
O’Brien had failed to meet his burden of proving substantial
similarity between the other accidents and O’Brien’s accident.
O’Brien assigns this as error.
[14,15] A plaintiff in a strict liability case may rely on
evidence of other similar accidents involving the product to
prove defectiveness, but the plaintiff must first establish that
there is a substantial similarity of conditions between the
other accidents and the accident that injured the plaintiff.22
The proponent of the evidence bears the burden to establish
the similarity between the other accidents and the accident at
issue before the evidence is admitted.23 The proffered evidence
must satisfy the substantial similarity test for it to be properly
admitted into evidence, whether to prove defect, causation,
or knowledge/notice.24 Substantial similarity is satisfied when
19
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
20
Id.
21
Id.
22
Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
23
Id.
24
Id.
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“the prior accidents or occurrences happened under substan-
tially the same circumstances and were caused by the same or
similar defects and dangers.”25
Here, the court summarized the circumstances of O’Brien’s
accident and the specific design defects he alleged and then
compared it to the evidence adduced regarding the 32 other
accidents. The court found the other accidents spanned from
1990 to the present, and while all involved flying in ice, sleet,
or snow, most did not involve evidence that the pilot had
activated the deicing boots, as O’Brien alleged to have done.
Some accidents involved planes that crashed during land-
ing, while others involved crashes during takeoff. Still others
involved an aircraft that landed safely or sustained minimal
damage. After comparing the evidence, the court concluded
that none of the 32 other accidents were substantially similar
to O’Brien’s, explaining:
These accidents occurred under entirely different circum-
stances; including different points of significance during
the flights, pilots of different experience levels, differ-
ent airport geography and topography, different weather
conditions (some conditions outside of those under which
the aircraft is actually certified to fly), and under circum-
stances that required different investigating agencies com-
ing to different factual and causation conclusions from
[O’Brien’s] proposed expert opinions on causation.
O’Brien does not take exception to any of these findings.
Instead, he suggests the trial court failed to recognize that he
offered evidence of the other accidents not just to prove the
specific defects he had alleged, but also as circumstantial evi-
dence that the aircraft was “susceptible to ICTS.”26 O’Brien
suggests that despite the dissimilarities noted by the court,
the prior accidents “are compelling proof” that the Model
208B is generally “unsafe in icing conditions because of its
25
Id. at 223, 710 N.W.2d at 834.
26
Replacement brief for appellant at 27.
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design,”27 and he argues the other accidents should have been
admitted for that purpose. We conclude the trial court not only
recognized O’Brien’s argument in this regard, but correctly
rejected it.
As explained earlier, O’Brien alleged his accident was
caused by several specific design defects and, consequently,
he cannot simultaneously rely on the malfunction theory in an
effort to prove the accident was caused by a nonspecific defect
rendering the aircraft “susceptible to ICTS.” The trial court
correctly considered the admissibility of the 32 other accidents
by comparing them to the circumstances surrounding O’Brien’s
accident and the specific defects he alleged, and focusing on
whether “the prior accidents or occurrences happened under
substantially the same circumstances and were caused by the
same or similar defects and dangers.”28
On this record, we find no abuse of discretion in the
court’s decision to exclude evidence of the 32 prior accidents.
“[W]here an individual fails to adequately demonstrate how
prior occurrences are substantially similar, evidence of prior
occurrences is irrelevant and, thus, inadmissible.”29
(c) FAA Airworthiness Directive
In 2006, the FAA issued “Airworthiness Directive
2006-06-06” (AD) affecting all “Cessna Model 208 airplanes
and Model 208B airplanes” equipped with pneumatic deicing
boots that were “not currently prohibited from flight in known
or forecast icing.” The AD required that certain information
be inserted into the flight manual, inserted into the pilots
operating handbook, and placed on instrument panel placards
to inform pilots that the aircraft could dispatch into forecast
areas of icing, but if pilots encountered “moderate or greater
icing conditions,” they were prohibited from continued flight
27
Id. at 28.
28
Shipler v. General Motors Corp., supra note 22, 271 Neb. at 223, 710
N.W.2d at 834.
29
Holden v. Wal-Mart Stores, 259 Neb. 78, 85, 608 N.W.2d 187, 193 (2000).
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and had to immediately exit such conditions. The AD included
regulatory language explaining how to comply with the FAA’s
directive and summarized several “accident/incidents” that
prompted the FAA to issue the AD.
At trial, there was considerable testimony regarding the
AD. The jury heard testimony about when and why the AD
was issued, what it required, how it impacted the certification
and operation of the Model 208B in moderate icing condi-
tions, and the actions taken to comply with the AD. But the
court did not receive a copy of the AD into evidence, finding
it contained inadmissible hearsay and was more prejudicial
than probative.
On appeal, O’Brien asserts it was reversible error to exclude
the AD as an exhibit. He argues the AD was admissible,
because it either fell within one of several hearsay exceptions
or was offered for a nonhearsay purpose. He also argues it was
an agency ruling subject to judicial notice under Neb. Rev.
Stat. § 27-201 (Reissue 2016). We do not reach the merits of
these evidentiary arguments, because we conclude even if error
could be shown, it would not warrant reversal on this record
because O’Brien cannot show the requisite prejudice.
[16,17] In a civil case, the admission or exclusion of evi-
dence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.30 The exclusion
of evidence is ordinarily not prejudicial where substantially
similar evidence is admitted without objection.31 In particular,
where the information contained in an exhibit is, for the most
part, already in evidence from the testimony of witnesses, the
exclusion of the exhibit is not prejudicial.32
Here, the relevant information contained within the AD was
presented to the jury through witness testimony. O’Brien’s
30
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015).
31
Id.
32
Id.
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closing argument focused extensively on that testimony, and
his briefing articulates no way in which the presentation of
O’Brien’s case was unfairly constrained by the exclusion of
the exhibit. Instead, O’Brien suggests that exclusion of the AD
exhibit was prejudicial, because it was the “only document the
jury asked to see during deliberations.”33
During deliberation, the foreperson sent a question to the
court asking: “Is [the AD] in evidence? If so, we can not [sic]
locate our copy. Could you provide it to us? (Or is it demon-
strative?)” Before responding to the jurors’ question, the court
consulted with counsel. O’Brien’s attorney pointed out that the
jury “heard all about” the AD and that “witnesses discussed
it in excruciating detail,” so he took the position that the jury
either should be provided a copy of the exhibit, even though
it was not in evidence, or should be instructed that “[y]our
recollection of its contents should be controlling.” The court
rejected both suggestions. Instead, the court responded to the
jury’s question as follows: “The Court received testimony
about the [AD], but the document itself was not received as
an exhibit . . . .”
O’Brien does not assign error to the court’s response, but
argues that the jury’s interest in reviewing the AD shows he
was prejudiced by its exclusion. We disagree.
Thousands of exhibits were marked in this case, and given
the amount of testimony and argument focused on the AD,
we find nothing unusual about the jury’s asking whether a
copy of the AD was in evidence. O’Brien’s statement to the
trial court that the jury “heard all about” the AD and “wit-
nesses discussed it in excruciating detail” is supported by the
record and directly contradicts the position he takes on appeal.
Moreover, nothing about the jury’s question, or the court’s
response, supports O’Brien’s argument that excluding a copy
of the AD unfairly prejudiced a substantial right. This assign-
ment is without merit.
33
Reply brief for appellant at 8.
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(d) FAA and National Transportation
Safety Board Documents
O’Brien assigns error to the exclusion of 12 exhibits related
to safety investigations conducted by the FAA and the National
Transportation Safety Board. The FAA exhibits include var-
ious directives, bulletins, briefing papers, and letters. The
National Transportation Safety Board’s exhibits include safety
recommendations, a listing of the board’s “Most Wanted
Transportation Safety Improvements,” and a PowerPoint pre-
sentation assessing icing incidents involving the Model 208B.
In response to a motion in limine, some of those exhibits were
excluded on hearsay grounds, and others were excluded on
grounds the exhibit was either irrelevant or more prejudicial
than probative. At trial, O’Brien made an offer of proof con-
cerning the excluded exhibits and the court affirmed its pre-
liminary rulings and excluded the exhibits.
O’Brien’s briefing combines his argument regarding all 12
exhibits. With respect to the exhibits excluded as hearsay,
O’Brien argues they were not being offered for their truth and
alternatively argues they should have been admitted under
the residual hearsay exception.34 With respect to the exhibits
excluded as irrelevant or unfairly prejudicial, O’Brien argues
the trial court should have required more proof that the unfair
prejudice outweighed the exhibits’ probative value.
We find it unnecessary to discuss the merits of O’Brien’s
evidentiary arguments, because we conclude that even if some
error could be shown, O’Brien cannot show that the exclusion
of these exhibits unfairly prejudiced a substantial right.35
O’Brien claims he offered these exhibits to establish “the
Caravan’s susceptibility to ICTS” and Cessna’s efforts to con-
ceal that susceptibility. He argues the exhibits were relevant
34
See Neb. Rev. Stat. § 27-804(2)(e) (Reissue 2016).
35
See Steinhausen v. HomeServices of Neb., supra note 30 (holding that
exclusion of evidence in civil case was not reversible error unless it
unfairly prejudiced substantial right of complaining party).
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to show that “the Caravan suffered unknown design flaws
making it unsafe to fly” in icing conditions and that “Cessna
knew the Caravan was susceptible to ICTS and concealed that
knowledge.”36 But as noted previously, O’Brien’s argument
that the Model 208B is “susceptible to ICTS” is an attempt to
prove an unspecified or general defect in the aircraft through
circumstantial evidence. And O’Brien cannot rely on the mal-
function theory in this case, because he did not plead it and
because the malfunction theory is not available where, as
here, specific defects have been alleged. As such, we conclude
O’Brien cannot show he was unfairly prejudiced by the exclu-
sion of exhibits he claims were offered to support a theory on
which he could not properly rely.
(e) Postaccident Design Change
In 2008, Cessna changed the design of its Caravan 208
series to, among other things, switch from pneumatic deicing
boots to a TKS anti-icing system. Cessna moved in limine
to exclude evidence of the postaccident design changes as a
subsequent remedial measure under Neb. Rev. Stat. § 27-407
(Reissue 2016). The court sustained Cessna’s motion, but
indicated it would revisit the admissibility of the design
change evidence “should conditions arise at trial that were
not anticipated in the briefing.” O’Brien assigns error to
this ruling.
[18,19] A motion in limine is only a procedural step to
prevent prejudicial evidence from reaching the jury. It is not
the office of such motion to obtain a final ruling upon the
ultimate admissibility of the evidence.37 Because overruling a
motion in limine is not a final ruling on the admissibility of
evidence and does not present a question for appellate review,
a question concerning the admissibility of evidence which is
the subject of a motion in limine must be raised and preserved
36
Replacement brief for appellant at 35.
37
State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
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for appellate review by an appropriate objection or offer of
proof during trial.38
O’Brien’s briefing neither mentions nor cites to an offer of
proof regarding evidence of the Caravan 208 series’ postac-
cident design change. We note O’Brien made a lengthy offer
of proof just before resting his case in chief, but that offer
did not include evidence of the Caravan 208 series’ postac-
cident design change. Having been cited to nowhere in the
25-­volume record where O’Brien made an appropriate offer of
proof regarding the postaccident design change, we conclude
he failed to preserve this assigned error for appellate review.
(f) Documents Marked as “Confidential”
During discovery, Goodrich produced 11 documents, each
marked “confidential” pursuant to a protective order entered
at Goodrich’s request. The protective order defined “confi-
dential information” to mean “bona fide trade secret or other
confidential, financial, research and development, or other
information identified in good faith by the supplying party,
whether it be a tangible thing, a document . . . or information
revealed in an interrogatory answer or other discovery.” The
documents at issue include copies of emails, reports, letters,
handwritten faxes, transcribed voicemail messages, and hand-
written notes. When O’Brien tried to offer these documents as
exhibits at trial, Goodrich objected. The trial court sustained
the objections and excluded the exhibits, finding they had not
been properly authenticated, lacked necessary foundation, and
contained inadmissible hearsay.
On appeal, O’Brien does not separately describe the exhibits
or explain why, with respect to each exhibit, the court’s evi-
dentiary rulings were erroneous. Rather, he addresses all 11
exhibits collectively, so we take the same approach.
O’Brien primarily argues that the trial court erred in ruling
the exhibits had not been properly authenticated and contained
38
See id.
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hearsay. Specifically, he contends that because Goodrich pro-
duced these documents during discovery and marked them
“confidential,” the documents were (1) thereby authenticated
under Neb. Rev. Stat. § 27-901 (Reissue 2016) and (2) excepted
from the hearsay rule as business records under Neb. Rev. Stat.
§ 27-803(5) (Reissue 2016). The trial court correctly rejected
both these contentions.
(i) Lack of Authentication
[20,21] Authentication or identification of evidence is a
condition precedent to its admission and is satisfied by evi-
dence sufficient to prove that the evidence is what the pro-
ponent claims.39 A court must determine whether there is
sufficient foundation evidence for the admission of physical
evidence on a case-by-case basis.40 Because authentication rul-
ings are necessarily fact specific, a trial court has discretion to
determine whether evidence has been properly authenticated;
we review a trial court’s ruling on authentication for abuse
of discretion.41
[22] Section 27-901 lists, by way of illustration, 10 means of
adequately authenticating a document. O’Brien does not claim
to have relied on any of these means to authenticate the docu-
ments at issue. Instead, he claims that Goodrich’s act of mark-
ing the documents “confidential” constituted a “judicial admis-
sion of authenticity.”42 Additionally, he argues that because the
documents were produced by Goodrich during discovery, they
needed no further authentication. We reject both of O’Brien’s
authenticity arguments.
[23,24] A judicial admission is a formal act done in the
course of judicial proceedings which is a substitute for
39
State v. Oldson, supra note 19.
40
Id.
41
Id.
42
Replacement brief of appellant at 38.
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evidence, thereby waiving or dispensing with the production
of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by the opponent is true.43 Similar
to a stipulation, a judicial admission must be unequivocal,
deliberate, and clear.44 By marking certain documents “confi-
dential” in connection with producing them during discovery,
Goodrich indicated nothing more than a good faith belief
that the document contained “confidential information” as
defined in the court’s protective order. Goodrich did not
thereby concede any proposition of fact alleged by O’Brien
in the litigation. Identifying the documents as “confidential”
did not amount to a judicial admission of the document’s
authenticity.
We also reject the broad proposition that producing a docu-
ment during discovery alleviates a proponent’s burden to lay
proper foundation for the admissibility of the evidence at trial.
Authentication requires more than saying “‘my opponent gave
me a document.’”45 While not a high hurdle, it is still the bur-
den of the proponent of the evidence to provide the court with
sufficient evidence that the document or writing is what it
purports to be.46 On this record, we find no abuse of discretion
in excluding the exhibits for lack of authentication.
(ii) Hearsay Exception for
Business Records
[25,26] Hearsay is not admissible except as provided by the
Nebraska Evidence Rules.47 O’Brien claims the 11 exhibits at
issue were admissible under the business records exception to
43
In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
44
Id.
45
See Cordray v. 135-80 Travel Plaza, Inc., 356 F. Supp. 2d 1011, 1015 n.5
(D. Neb. 2005).
46
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
47
Id.
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the general exclusion of hearsay evidence.48 The party seeking
to admit a business record under § 27-803(5)(a) bears the bur-
den of establishing foundation under a three-part test.49 First,
the proponent must establish that the activity recorded is of a
type that regularly occurs in the course of the business’ day-
to-day activities.50 Second, the proponent must establish that
the record was made as part of a regular business practice at
or near the time of the event recorded.51 Third, the proponent
must authenticate the record by a custodian or other quali-
fied witness.52
O’Brien directs us to nowhere in the record where he
attempted to establish the foundational requirements for show-
ing that any of the 11 exhibits were business records under
§ 27-803(5). Instead, both before the district court and on
appeal, O’Brien argued that because the documents were
marked “confidential” by Goodrich and produced during dis-
covery, they must, ipso facto, be treated as Goodrich’s busi-
ness records.
The trial court rejected O’Brien’s blanket proposition that
anytime a business produces a document marked “confidential”
pursuant to a protective order, the document must be allowed
to come into evidence as a business record under § 27-803(5).
We reject it too.
It was O’Brien’s burden, as the party seeking to admit a
business record under § 27-803(5)(a), to establish the foun-
dational requirements for such admission.53 He failed to meet
48
§ 27-803(5). See Arens v. NEBCO, Inc., supra note 17.
49
State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). See,
also, Misle v. Misle, 247 Neb. 592, 529 N.W.2d 54 (1995); State v. Wright,
231 Neb. 410, 436 N.W.2d 205 (1989).
50
Id.
51
Id.
52
Id.
53
See id.
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that burden, and we find no abuse of discretion in excluding
these exhibits as hearsay.
(g) Radar Reconstruction Expert
Before trial, Cessna moved in limine to prohibit O’Brien’s
radar reconstruction expert from testifying regarding his per-
formance analysis of the accident flight. After an evidentiary
hearing, the trial court sustained the motion in limine, finding
that O’Brien did not meet his burden to show that the meth-
odology employed by the expert was scientifically reliable
under Daubert v. Merrell Dow Pharmaceuticals, Inc.54 and
Schafersman v. Agland Coop.55
Two months later, O’Brien moved for reconsideration of the
ruling in limine and asked to supplement the record. The court
declined to revisit its preliminary ruling before trial, explain-
ing that O’Brien had been given an opportunity to supplement
his evidence before the court’s original ruling in limine and
was content at the time to rest on the evidence and argu-
ment submitted.
On appeal, O’Brien argues it was error for the trial court
to exclude the opinion testimony of his radar reconstruction
expert. Cessna argues this issue was not preserved for appel-
late review, because O’Brien failed to make an offer of proof at
trial regarding the expert’s testimony. The record bears this out.
[27] In order to predicate error upon a ruling of the court
refusing to permit a witness to testify, or to answer a specific
question, the record must show an offer to prove the facts
sought to be elicited.56 O’Brien does not argue that he made
an appropriate offer of proof at trial regarding the opinions he
wanted to elicit from his radar reconstruction expert. Rather,
54
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
55
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
56
State v. Schreiner, supra note 37.
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he suggests the issue was adequately preserved by the district
court’s ruling in limine. O’Brien is incorrect.
As stated previously, the ruling on a motion in limine is
not a final ruling on the admissibility of evidence; the admis-
sibility of evidence which has been the subject of a motion in
limine must be raised and preserved for appellate review by an
appropriate objection or offer of proof during trial.57 Because
he failed to make an offer of proof at trial regarding the antici-
pated testimony of the radar reconstruction expert, O’Brien
failed to preserve this assigned error for our review.
4. Choice of Law R egarding
Punitive Damages
O’Brien’s amended complaint sought to recover punitive
damages and alleged that the law of Kansas, rather than
Nebraska, applied to that issue. Cessna and Goodrich moved
for partial summary judgment on the choice-of-law issue. After
an evidentiary hearing, the district court conducted a choice-of-
law analysis and concluded that as a matter of law, Nebraska
law applied to the issue of punitive damages. O’Brien assigns
this as error.
(a) Standard of Review
[28-30] We will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that
there is no genuine issue as to any material facts or as to the
ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.58
When there are no factual disputes regarding state contacts,
conflict-of-law issues present questions of law.59 When review-
ing questions of law, an appellate court has an obligation to
57
Id.
58
White v. Busboom, 297 Neb. 717, 901 N.W.2d 294 (2017).
59
Erickson v. U-Haul Internat., 278 Neb. 18, 767 N.W.2d 765 (2009);
Heinze v. Heinze, 274 Neb. 595, 742 N.W.2d 465 (2007).
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resolve the questions independently of the conclusion reached
by the trial court.60
(b) Nebraska Law Applies to
Issue of Punitive Damages
[31,32] In answering any choice-of-law question, a court
first asks whether there is any real conflict between the laws
of the states.61 An actual conflict exists when a legal issue is
resolved differently under the law of two states.62 The district
court found that a conflict existed between Nebraska and
Kansas law on the issue of punitive damages. We agree.
[33] Under Nebraska law, “punitive, vindictive, or exem-
plary damages contravene Neb. Const. art. VII, § 5, and thus
are not allowed in this jurisdiction.”63 In contrast, Kansas law
allows punitive damages to be awarded for “‘malicious, vindic-
tive, or willful and wanton invasion of another’s rights, with
the ultimate purpose being to restrain and deter others from the
commission of similar wrongs.’”64
[34,35] Once a court determines there is a conflict of law
between two states, the next step is to classify the nature of
the specific conflict issue, “‘because different choice-of-law
rules apply depending on whether the cause of action sounds
in contract or in tort.’”65 This case involves tort liability, and
60
See id.
61
In re Estate of Greb, 288 Neb. 362, 848 N.W.2d 611 (2014).
62
See id.
63
Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 857, 443
N.W.2d 566, 574 (1989), citing Miller v. Kingsley, 194 Neb. 123, 230
N.W.2d 472 (1975).
64
Adamson v. Bicknell, 295 Kan. 879, 888, 287 P.3d 274, 280 (2012),
quoting Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347,
837 P.2d 330 (1992).
65
Johnson v. United States Fidelity & Guar. Co., 269 Neb. 731, 737, 696
N.W.2d 431, 437 (2005) (emphasis omitted), quoting Buchanan v. Doe,
246 Va. 67, 431 S.E.2d 289 (1993).
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to resolve conflicts of law involving tort liability, this court
consistently has applied the Restatement (Second) of Conflict
of Laws § 146,66 which sets out the general rule that “[i]n an
action for a personal injury, the local law of the state where
the injury occurred determines the rights and liabilities of the
parties, unless, with respect to the particular issue, some other
state has a more significant relationship . . . .”
Section 145 of the Restatement (Second) of Conflict of
Laws sets out the “most significant relationship” test and
provides that in addition to principles articulated elsewhere in
the Restatement,67 the court should take into account the fol-
lowing contacts:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury
occurred,
(c) the domicil, residence, nationality, place of incorpo-
ration and place of business of the parties, and
(d) the place where the relationship, if any, between the
parties is centered.68
The Restatement cautions, however, that these contacts are
not to be given equal weight mechanically, but should each be
considered in light of their relative importance with respect to
the particular issue under consideration.69
Additionally, because the issue under consideration
here involves punitive damages, we note that § 171 of the
Restatement (Second) of Conflict of Laws deals specifically
with damages. Comment d. of § 171 addresses exemplary
or punitive damages and directs that “[t]he law selected by
66
Restatement (Second) of Conflict of Laws § 146 (1971). See, Yoder v.
Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008); Heinze v. Heinze, supra
note 59; Malena v. Marriott International, 264 Neb. 759, 651 N.W.2d 850
(2002).
67
See Restatement, supra note 66, § 6.
68
Id., § 145(2).
69
Id.
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application of the rule of § 145 determines the right to exem-
plary damages.”70
As such, under the general rule set forth in § 146 of the
Restatement (Second) of Conflict of Laws, Nebraska law will
apply to the issue of punitive damages in this case, unless
Kansas has a more significant relationship considering the fac-
tors in § 145.
Here, the district court began its analysis by noting the
parties did not dispute the basic facts about the parties’ con-
tacts with Nebraska and Kansas. O’Brien was a Nebraska
resident, employed by a Nebraska company flying mail in
Nebraska, and he was injured and treated for his injuries in
Nebraska. Cessna was headquartered in Kansas, made several
design decisions regarding the Caravan models in Kansas,
and conducted test flights from Kansas. Goodrich was a
New York corporation with its principal place of business in
North Carolina.
The district court then analyzed the pertinent sections of the
Restatement (Second) of Conflict of Laws, discussed several
state and federal cases applying those factors, and considered
the undisputed evidence regarding the parties’ contacts under
the factors in § 145. It ultimately concluded:
This case has numerous, strong contacts to Nebraska
that inform Nebraska’s interest in applying its laws to
the issue of punitive damages. The injury took place in
Nebraska; Plaintiffs are Nebraska residents; . . . O’Brien
was flying a regular route within Nebraska at the time
of the accident; Suburban Air Freight, the owner of the
aircraft and employer of . . . O’Brien, is a Nebraska resi-
dent; . . . O’Brien was treated in Nebraska; the Cessna
aircraft product at issue was operated at all relevant
times within the borders of Nebraska and the alleged
product failures took place in this state. . . . Although
important decisions and product manufacture took place
70
Id., § 171, comment d. at 512.
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at the Cessna headquarters in Kansas, the overall weight
of the contacts in this case point toward Nebraska hav-
ing the most significant relationship with this issue. .
. . Given the Cessna aircraft’s consistent operation on
a Nebraska air route by Nebraska pilots and owners, it
is Nebraska that has the most interest in the application
of laws to this accident. As Nebraska also has a strong
constitutional policy against punitive damages, Nebraska
law should be applied to punitive damage claims . . . in
this case.
In O’Brien’s briefing, he points to nothing in the district
court’s analysis of the Restatement factors that he claims was
incorrect or incomplete. He offers no rationale for apply-
ing Kansas law on punitive damages other than to state that
“Kansas law should apply because Cessna is based there and
its culpable conduct occurred in Kansas.”71 His briefing does
not address any of the other Restatement factors. And except
for the issue of punitive damages, O’Brien has not argued that
Kansas law properly governs any other issue of liability or
damages in this tort litigation.
After reviewing the record in light of the applicable
Restatement factors, we agree with the district court that the
factors predominate in favor of applying Nebraska law to the
issue of punitive damages in this case. The trial court did not
err in granting summary judgment on this issue of law.
5. Jury Instructions
O’Brien assigns error to the jury instructions given in this
case. He argues that when instructing the jury on his negli-
gence and strict liability claims, the district court should have
used the “statement of the case” instruction O’Brien tendered.72
We find no error in the district court’s refusal of O’Brien’s
proposed instruction.
71
Replacement brief for appellant at 44.
72
Id. at 25.
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(a) Standard of Review
[36] Whether the jury instructions given by a trial court are
correct is a question of law. When reviewing questions of law,
an appellate court has an obligation to resolve the questions
independently of the conclusion reached by the trial court.73
(b) No Error in Refusing
O’Brien’s Instruction
[37,38] To establish reversible error from a court’s failure
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the tendered instruction.74 Jury instructions do
not constitute prejudicial error if, taken as a whole, they cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and evidence.75
On appeal, O’Brien does not argue that the court’s jury
instructions incorrectly stated the applicable law. Rather, he
complains that the court’s burden-of-proof instructions were
incomplete, because they did not include each of the specific
acts of negligence, or each of the particular design defects,
that he described in his pleadings and repeated in his ten-
dered instruction.
At the jury instruction conference, the trial court expressed
concern with the length, complexity, and redundancy of
O’Brien’s proposed instructions. We note O’Brien’s proposed
statement of the case was 15 pages long; his burden-of-proof
section listed 27 ways in which the defendants were negligent
and 18 ways in which the Model 208B and its component parts
were defectively designed. The district court refused to give
O’Brien’s tendered instructions and instead drafted its own,
73
Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).
74
Tapp v. Blackmore Ranch, 254 Neb. 40, 575 N.W.2d 341 (1998).
75
Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).
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explaining that its goal was to eliminate the redundancy and
simplify the issues for the jury, while still allowing the parties
to argue all of the claims and defenses that were properly sup-
ported by the pleadings and the evidence.
It is unnecessary to individually address each of the spe-
cific factual grounds that O’Brien claims the court erroneously
omitted from the jury instructions. The essence of his argu-
ment on appeal is that his specific allegations of negligence
and design defect should have been submitted to the jury in
haec verba and that the court’s summarization was unfair. We
disagree with both contentions.
[39,40] A trial court is not required to submit repetitious
allegations of the same act of negligence.76 This court has
consistently condemned the practice of instructing the jury
in haec verba and, instead, has placed the duty squarely upon
the trial court to properly analyze, summarize, and submit
the substance of the numerous allegations of negligence
in tort petitions.77 That is precisely what the district court
did here.
Having examined the entire record, we conclude the district
court’s jury instructions properly analyzed and fairly summa-
rized O’Brien’s various theories in accordance with Nebraska
law, and did so in a manner which minimized redundancy and
still allowed the parties to argue all the theories that were sup-
ported by the pleadings and the evidence.
In sum, we reject O’Brien’s argument that his tendered
instructions should have been used and we conclude that the
district court’s instructions correctly stated the law, were not
misleading, and adequately covered the issues to be submitted
to the jury.
76
See, Davis v. Roosman, 179 Neb. 808, 140 N.W.2d 639 (1966); Kroeger v.
Safranek, 165 Neb. 636, 87 N.W.2d 221 (1957).
77
See, Foltz v. Northwestern Bell Tel. Co., 221 Neb. 201, 376 N.W.2d 301
(1985); Greenberg v. Bishop Clarkson Memorial Hosp., 201 Neb. 215, 266
N.W.2d 902 (1978); Marquardt v. Nehawka Farmers Coop. Co., 186 Neb.
494, 184 N.W.2d 617 (1971).
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6. Taxation of Costs
After the jury returned its verdict for the defendants, the
court accepted the verdict and entered judgment thereon,
directing O’Brien to “pay costs of [the] action.” Six days
later, Cessna moved for an award of costs in the sum of
$124,424.39.
O’Brien argued Cessna’s motion for costs was untimely,
because it was filed 6 days after the court accepted the jury’s
verdict and entered judgment thereon. The district court dis-
agreed and found Cessna’s motion was timely. It noted that
its earlier judgment ordered O’Brien to pay costs but did not
specify an amount, and it construed Cessna’s motion alterna-
tively either as a motion to calculate those costs or as a motion
to alter or amend the judgment to include a specific award
of costs.78
After an evidentiary hearing and briefing, the court entered
an order awarding Cessna some of its deposition costs and
subpoena fees in the total amount of $35,701.68. The court’s
order recited the applicable law and included an itemized list
of the deposition costs found to be recoverable.
On appeal, O’Brien assigns error to the court’s award of
costs. His primary argument is that the motion for costs was
untimely, but he also suggests it was error to tax costs asso-
ciated with certain depositions. We address both arguments
below, and we find neither has merit.
(a) Standard of Review
[41] The decision of a trial court regarding taxing of
costs is reviewed for an abuse of discretion.79 An abuse of
discretion occurs when the trial judge’s reasons or rul-
ings are clearly untenable, unfairly depriving a litigant of a
78
See Neb. Rev. Stat. § 25-1329 (Reissue 2016).
79
Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017); City of
Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 N.W.2d 256
(2011).
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substantial right and denying just results in matters submitted
for disposition.80
(b) No Error in Awarding Costs
[42,43] We have long held that the costs of litigation and
expenses incident to litigation may not be recovered unless
provided by statute or a uniform course of procedure.81 In
this case, the court awarded costs pursuant to Neb. Rev. Stat.
§ 25-1710 (Reissue 2016).82 Under that statute, a successful
defendant in a tort action is ordinarily entitled to an award of
costs as a matter of course “upon a judgment in his favor.”83
(i) Motion for Costs Was Timely
O’Brien argues Cessna’s motion for costs was untimely
under this court’s holding in Salkin v. Jacobsen.84 In Salkin, we
held that the defendant, who was seeking an award of attorney
fees on the ground the plaintiff’s action had been dismissed
as frivolous,85 had not timely filed his motion before the entry
of judgment. We reasoned that attorney fees, where recover-
able, are treated as an element of court costs, and we further
reasoned that an award of costs in a judgment is considered
part of the judgment. We then held that one seeking an award
of attorney fees from the trial court pursuant to § 25-824 must
make such a request before judgment is entered.
Salkin did not address the timeliness of a motion for costs
under § 25-1710. Nor does the language of § 25-1710 address
when any such motion must be filed, directing instead that
“[c]osts shall be allowed of course to any defendant upon
80
Holden v. Wal-Mart Stores, supra note 29.
81
See City of Falls City v. Nebraska Mun. Power Pool, supra note 79.
82
See Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530 N.W.2d
230 (1995).
83
See Rehn v. Bingaman, 152 Neb. 171, 173, 40 N.W.2d 673, 675 (1950),
citing § 25-1710.
84
Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).
85
See Neb. Rev. Stat. § 25-824 (Reissue 2016).
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a judgment in his favor in the actions mentioned in sec-
tion 25-1708.” A similar statute provides that costs “shall be
allowed of course” to prevailing plaintiffs.86
As a practical matter, it is unlikely that a plaintiff or
defendant will file a motion seeking costs in the trial court
before judgment is entered in their favor. And while we do
not endorse the practice, we note it is not uncommon for trial
courts, when entering judgment on a jury verdict, to award
unspecified “costs” to the prevailing party without identifying
or calculating the amount.
Here, the district court’s judgment expressly directed
O’Brien to pay costs of the action, but did not specify the
amount of such costs. O’Brien’s argument that the motion
for costs was untimely is premised on the conclusion that the
judgment awarding unspecified costs was final and appeal-
able. We express no opinion on whether a purported judgment
that includes an award of unspecified costs can be considered
a judgment under Neb. Rev. Stat. § 25-1301 (Reissue 2016),
but on this record, we find no abuse of discretion in the dis-
trict court’s conclusion that Cessna’s motion for specific costs
was timely.
Like the district court, we construe Cessna’s subsequent
motion for costs either as a motion seeking to modify the
award of unspecified costs previously awarded or as a motion
to alter or amend the judgment purporting to award unspecified
costs. Whether construed as a motion to modify under Neb.
Rev. Stat. § 25-2001 (Reissue 2016) or a as a motion to alter
or amend under § 25-1329, we conclude that Cessna’s motion,
filed 6 days after the court entered a judgment that included
unspecified costs, was timely filed.
(ii) No Abuse of Discretion in
Awarding Deposition Costs
[44,45] O’Brien’s briefing challenges only that portion of
the court’s award pertaining to deposition costs. It is well
86
Neb. Rev. Stat. § 25-1708 (Reissue 2016).
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established that deposition costs are properly taxable and
recoverable under § 25-1710.87 Moreover, we have explained
that “‘“unless it appears that the depositions were not taken in
good faith or were actually unnecessary, costs of taking them
are properly taxable,”’” even if the depositions were not used
at trial.88 The questions of good faith and reasonable necessity
are for the trial court to determine, bearing in mind that a depo-
sition may appear necessary when taken, but “‘“afterward the
case may take such a course as to make it unnecessary to use
the deposition.”’”89
Here, the district court determined that Cessna should
recover the reasonable costs to prepare the original tran-
scripts of the depositions along with the court reporter appear-
ance fees, but did not allow recovery of the costs associated
with videotaping and editing the depositions. The court also
declined to award deposition costs when the invoices were not
sufficiently detailed, and in several instances, it prorated costs
for depositions that took longer than the court’s protective
orders permitted.
On this record, we find the district court provided a rea-
soned and logical explanation for the manner in which it taxed
costs under § 25-1710. It did not abuse its discretion, and
O’Brien’s assignment to the contrary is without merit.
V. CONCLUSION
For the reasons set forth herein, we find no merit to any of
O’Brien’s assigned errors and affirm the judgment of the dis-
trict court.
A ffirmed.
Wright, J., not participating.
87
Bunnell v. Burlington Northern RR. Co., supra note 82.
88
Stocker v. Wells, 155 Neb. 472, 478, 52 N.W.2d 284, 287 (1952).
89
Id.