Walker v. Messerschmitt Bolkow Blohm GmBH

• Decision Date: 16 June 1988
• Docket Number: Nos. 86-1472,86-1689,s. 86-1472
• Citation: 848 F.2d 496
• Parties: 26 Fed. R. Evid. Serv. 190 Virginia WALKER, et al., Plaintiffs, Lonestar Helicopters and North Central Texas Services d/b/a Careflite, Plaintiffs-Counter Defendants-Appellants, v. MESSERSCHMITT BOLKOW BLOHM GmBH and MBB Helicopter Corp., Defendants-Counter and Third Party Plaintiffs-Appellees Cross-Appellants, Cross-Appellees v. The ESTATE OF Rick Lemar FEE and the Estate of Billy Wayne Walker, Third Party Defendants-Appellants Cross-Appellees. Lone Star Helicopters, Inc., North Central Texas Services d/b/a Careflite, the Estate of Rick Lemar Fee and the Estate of Billy Wayne Walker, Plaintiffs-Appellants, United States Fire Insurance Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 496

848 F.2d 496

26 Fed. R. Evid. Serv. 190

Virginia WALKER, et al., Plaintiffs,

Lonestar Helicopters and North Central Texas Services d/b/a

Careflite, Plaintiffs-Counter Defendants-Appellants, v. MESSERSCHMITT BOLKOW BLOHM GmBH and MBB Helicopter Corp., Defendants-Counter and Third Party Plaintiffs-Appellees Cross-Appellants, Cross-Appellees v. The ESTATE OF Rick Lemar FEE and the Estate of Billy Wayne

Walker, Third Party Defendants-Appellants Cross-Appellees.

Lone Star Helicopters, Inc., North Central Texas Services

d/b/a Careflite, the Estate of Rick Lemar Fee and

the Estate of Billy Wayne Walker,

Plaintiffs-Appellants,

United States Fire Insurance Company, Defendant-Appellee.

Nos. 86-1472, 86-1689.

United States Court of Appeals, Fifth Circuit.

June 16, 1988.

P. Michael Jung, Kevin H. Good, John E. Phillips, Dallas, Tex., for Messerschmitt Bolkow Blohm GmBH and MBB Helicopter Corp.

Martha Vollers Swanger, Austin, Tex., Theodore G. Kolias, Robert A. Gwinn, Dallas, Tex., for Lone Star Helicopters et al.

Newton J. Jones, Rebecca S. Covell, Sifford & Pezzuli, Dallas, Tex., for U.S. Fire Ins. Co.

Appeals from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

(Opinion May 10, 1988, 5th Cir. 844 F.2d 237)

Before GOLDBERG, POLITZ, and DAVIS, Circuit Judges.

PER CURIAM:

In its application for rehearing, Messerschmitt BOLKOW BLOHM GmBH (MBB) raises two points that require consideration.

First, it argues that we misread the record when we observed that MBB failed to preserve its objection to North Central's evidence of other "collective bottoming incidents." MBB points to an exchange between its counsel and the district court on its objections to the admission of portions of two depositions relating to other collective bottoming incidents. In a conference at the beginning of the trial, the court overruled those objections and stated that MBB had a "continuing objection" to the evidence of similar incidents. The record is ambiguous as to whether this continuing objection granted by the court related only to testimony in the two depositions or to such evidence in the trial generally. On reconsideration we conclude that we should give MBB the benefit of the doubt and accept MBB's interpretation of the district court's ruling. Nevertheless, we conclude that the district court did not err in admitting evidence of the other bottoming incidents. The district court was entitled to find that the circumstances surrounding the other bottoming incidents were substantially similar to the facts that occurred just before the crash of the MBB helicopter in the instant case. A manufacturer's knowledge of other similar accidents is ordinarily considered probative of the manufacturer's knowledge of the defect and of whether the design was inadequate. Jackson v. Firestone Tire & Rubber Co., 779...