Barnett v. La Societe Anonyme Turbomeca France

• Decision Date: 25 November 1997
• Docket Number: Nos. WD,s. WD
• Parties: Prod.Liab.Rep. (CCH) P 15,185 Kyong Ju BARNETT, et al., Respondent-Appellant, James S. Barnett, Sr., and Wanda Barnett, Respondents-Appellants, v. LA SOCIETE ANONYME TURBOMECA FRANCE a/k/a Turbomeca, S.A., Appellant-Respondent, Turbomeca Engine Coporation, Appellant-Respondent. 51980, WD 52016.
• Court: Missouri Court of Appeals

Page 639

963 S.W.2d 639

Prod.Liab.Rep. (CCH) P 15,185

Kyong Ju BARNETT, et al., Respondent-Appellant, James S. Barnett, Sr., and Wanda Barnett, Respondents-Appellants, v. LA SOCIETE ANONYME TURBOMECA FRANCE a/k/a Turbomeca, S.A.,

Appellant-Respondent,

Turbomeca Engine Coporation, Appellant-Respondent.

Nos. WD 51980, WD 52016.

Missouri Court of Appeals,

Western District.

Nov. 25, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 27, 1998.

Application for Transfer Denied

March 24, 1998.

Gary C. Robb, Kansas City, for Kyong Ju Barnett, et al.

Duke W. Ponick, Jr., Kansas City, for Wanda and James Barnett.

Douglas N. Ghertner, Kansas City, for La Societe Anonyme Turbomeca France.

Thomas C. Walsh, St. Louis, for Torbomeca Engine Corp.

Before ULRICH, C.J., and LOWENSTEIN, BRECKENRIDGE, HANNA, SPINDEN, SMART, ELLIS, LAURA DENVIR STITH, EDWIN H. SMITH and HOWARD, JJ., and BERREY, Senior Judge.

LOWENSTEIN, Judge.

This case, brought by survivors of the pilot in the same Life Flight helicopter accident which underlies the companion opinion handed down this day in Letz v. Turbomeca Engine Corporation, et al., No. WD 51446, --- S.W.2d ----, 1997 WL 727544 (Mo.App.W.D. 1997)., was tried after the Letz case. The defendants have appealed on numerous grounds--the plaintiffs cross-appeal on one point. The case was submitted to the jury on the theories of strict liability, negligence and failure to warn. Letz is being handed down simultaneously with this, the Barnett case, because the cases contain the same facts, similar and overlapping points and because the amount of punitive damages in the previous case bears on the net amount of this award. This is an appeal by the same defendants in Letz, from the jury verdicts of $175 million actual damages and $175 million punitive damages which resulted in a trial court judgment, after remittitur, of $25 million actual and $87.5 million punitive arising from the wrongful death suit brought by the family of the pilot. ¹ Therefore, this opinion will only briefly recite the relevant facts of the incident including factual and procedural details

specific to this appeal. Additional facts will be included in the points to which they are relevant. This opinion will address only the points raised which are not resolved by this court's opinion in Letz.

GENERAL FACTS

On May 27, 1993, a single engine helicopter piloted by James Barnett, Life Flight 2, was transporting trauma victim, Sherry Ann Letz, from Maryville, Missouri to St. Luke's Hospital in Kansas City. En route, the helicopter engine suddenly failed and within ten to fifteen seconds crashed near Cameron. After the engine failed, Barnett maneuvered the aircraft some seventy feet beyond a stand of sixty foot trees, and crash-landed in a field. Four individuals were aboard the helicopter at the time of the crash: James Barnett, Jr., ("Barnett") the pilot; Sherry Letz, the trauma victim; Sheila Roth, a flight nurse; and Philip Hedrick, a respiratory therapist. Letz and Barnett were killed in the crash and the other two passengers were seriously injured. The crash was attributed to the failure of the TU-76 nozzle guide vane, in fact, Turbomeca finally admitted in their brief: "... there is no question in this case that the engine involved sustained an inflight shutdown as a result of the failure of the TU-76 nozzle vane due to low stress thermal fatigue." ²

The crash resulted in four separate lawsuits: the flight nurse and the respiratory therapist reached settlement agreements with Turbomeca, S.A., which designed and manufactured the helicopter, and Turbomeca Engine Corporation, a wholly owned subsidiary and distributor of the helicopter (hereinafter, the two defendant companies will be collectively referred to as "Turbomeca" and the American subsidiary, when standing alone, will be referred to as "Turbomeca Engine"). Letz's family filed a wrongful death action, and Barnett's family filed the wrongful death action here appealed. Again, in an effort to simplify the facts, Turbomeca shall mean both the defendant companies, and previous individual verdicts and judgments rendered against each of the two defendants shall be combined into one figure to represent the total judgment against "Turbomeca."

Barnett's immediate surviving family members who joined in the wrongful death action were: his wife of fifteen years, Kyong Ju ("Julia") Barnett; his fourteen-year-old son, Jessie; his twelve-year-old daughter Mia; and his parents, Wanda and James Barnett, Sr.

James Barnett died as a result of a transected thoracic aorta--he bled to death in the helicopter within 3 to 5 minutes after the crash. On the date of his death, Barnett was forty years old and in generally good health. He was an experienced military and civilian pilot having completed Army flight school and helicopter training. He was also certified for commercial flights. Barnett was employed as a full-time Life Flight pilot for eight years prior to the accident and earned a salary of $34,000.00 annually. His life expectancy was an additional thirty-five years. Trial testimony indicated the purely economic damages suffered by Barnett's wife and children was $649,080.00. The amount of those damages is not contested.

Because this case was tried after Letz, the procedural aspects of the case are distinct. Specifically, the Letz trial was not bifurcated and the verdict on damages (originally $70 million) was rendered in one lump sum which did not distinguish the amounts attributable to actual damages and punitive damages. This case was bifurcated as outlined in § 510.263, RSMo 1994, ³ to distinguish the actual and punitive damages. A more detailed discussion of the statute is contained in Point 3, infra.

After a seventeen day jury trial, the jury returned a verdict of $175 million actual damages and $175 million punitive damages ($350 million total) in favor of Barnett's family. The verdicts were remitted by the trial court Among the points raised in this appeal are several that are addressed and answered in this court's opinion in Letz ⁵. Those points will not be directly dealt with in this opinion. The six points to be dealt with in this opinion are as follows:

                to $25 million actual damages and $87.5 million punitive damages ($112.5 million total).  The trial court then issued a credit under § 510.263.5 for the amount of punitive damages previously imposed by the trial court in Letz.  Since the Letz verdict was not bifurcated, the court determined one half of the $70 million total judgment was punitive and, accordingly, issued a $35 million credit.  The Barnetts accepted the remitted award and the Second Amended and Final Judgment was entered awarding $25 million in actual damages and $52.5 million in punitive damages ($77.5 million total) allocated among the two named defendants. 4  Turbomeca appeals from this judgment and the Barnetts cross-appeal only on the matter of the credit based on the Letz punitive judgment
                

1. Evidentiary questions involving: (A) pre-accident defects, and (B) whether Exhibit 111, an airworthiness directive, and Exhibit 177, an in-house letter on Turbomecca Engine letterhead suggesting the service bulletin was inadequate, should not have been admitted in evidence as they were evidence of post-accident subsequent remedial measures.

2. The trial court improperly instructed the jury in that: Instructions # 25 and # 27 did not instruct on proper mental state; Instruction # 5 improperly defined "ordinary care"; and, Instruction # 19 improperly withdrew an issue from the jury's consideration.

3. The trial court erred in refusing to allow the bifurcation process to be explained to the jury, and as a result, the jury was confused and misled.

4. The trial court erred in overruling defendants' objections to plaintiffs' admission of evidence of defendants' gross sales figures to support plaintiffs' claim for aggravating circumstances damages.

5. The trial court erred in denying defendants' motion for a new trial and refusing to enter a further remittitur of compensatory damages because the judgment as remitted, is grossly excessive, unsupported by the evidence, the product of counsel's misconduct and the jurors' bias, passion and prejudice, and bears no relation to damages authorized by § 537.090.

6. The trial court erred in failing to grant a directed verdict (not preserved in Letz), and denying defendants' motion for a new trial and refusing to further remit punitive damages because the judgment remains grossly excessive, the product of counsel's misconduct, constitutes an excessive fine under the Eighth Amendment, denies defendants' due process and shocks the conscience of the court. Points 5 and 6 will be treated together as the final point on the Turbomeca appeal.

Finally, this opinion will address the Barnett cross-appeal on the proper net judgment amount for aggravating damages after calculation of the credit due from Letz.

SPECIFIC FACTS

The following is a timeline indicating the number and dates of all crash incidents involving the modified TU-76 and related Service Bulletins and Letters. It is presented to better acquaint the reader with the issues pertinent to this appeal. Legend:

1. The chronology includes only incidents involving the modified TU-76 second stage nozzle--the same defective product on the aircraft in this case. The original TU-76 was replaced by the modified TU-76 in the early 1980s, in order to gain a cost savings in production. The original component had not, prior to the modification, been 2. Entries under "Information" are taken from internal Turbomeca reports or from testimony of its officials.

                implicated in any cracking problems or in-flight failures. 6  The later developed TU-202 ("Replacement") and TU-197 ("New") nozzles have not been implicated in any aircraft power failures
                

3. Entries involving this Life Flight helicopter are printed in bold.

Year Specific Date Information

                1985

...