Beech Aircraft Corp. v. Harvey

• Decision Date: 26 November 1976
• Docket Number: No. 2513,2513
• Citation: 558 P.2d 879
• Parties: BEECH AIRCRAFT CORPORATION, Appellant, v. Lola F. HARVEY, as personal representative of the Estate of James W. Harvey, Deceased, and Germaine A. Chester, as personal representative of the Estate ofLorren R. Chester, Deceased, Appellees.
• Court: Alaska Supreme Court

Page 879

558 P.2d 879

BEECH AIRCRAFT CORPORATION, Appellant, v. Lola F. HARVEY, as personal representative of the Estate of James W. Harvey, Deceased, and Germaine A Chester, as personal representative of the Estate ofLorren R Chester, Deceased, Appellees.

No. 2513.

Supreme Court of Alaska.

Nov. 26, 1976.

D. A. Burr and Ronald H. Bussey, Burr, Pease & Kurtz, Inc., Anchorage, and Landon Morris, associated with Burr, Pease & Kurtz, Anchorage, for appellant.

L. Ames Luce, Kelly & Luce, Theodore R. Dunn and David Shimek, Matthews, Dunn & Baily, and Michelle V. Minor, Anchorage, for appellees.

Before BOOCHEVER, Chief Justice, RABINOWITZ and CONNOR, Justice, DIMOND, Justice Pro Tem., and VAN HOMMISSEN, Superior Court Judge.

OPINION

CONNOR, Justice.

This products liability action concerns the death of two men in the crash of a light plane manufactured by appellant. The case was tried by jury before the superior court at Kodiak.

On March 16, 1967, James Harvey and his passenger, Lorren Chester, attempted to take off in an aircraft from Kodiak Municipal Airport. The aircraft crashed into a gravel pile and they died. Plaintiffs are the personal representatives of decedents' estates, suing on behalf of those estates and their various heirs and beneficaries. The principal dispute in the case concerned the issue of liability. Plaintiffs' theory was that the aircraft's wings had been defectively welded to the craft during construction in 1946 by the manufacturer Beech Aircraft Corporation (Beech), and that as a result a 'fatigue crack' had developed in the craft, causing the left wing to fail by 'folding up.' Beech's theory of the crash was that frost on the wings of the aircraft caused it to stall, resulting in a crash into the gravel pile which overloaded the left wing and fractured it loose from the aircraft.

Much testimony was introduced on both sides, including considerable conflicting expert testimony by many witnesses as to whether the left wing showed fatigue or overload fracturing. Physical evidence and the declaration of an eyewitness were also introduced. The jury returned a verdict against. Beech for $1.3 million, which when combined with prejudgment interest, costs and attorney's fees resulted in a judgment of over $2 million. Mrs. Harvey was awarded $500,000 in damages, and Mrs. Chester $800,000.

One of the principal contentions of Beech is that Judge Burke was biased in favor of plaintiffs. It complains that this bias caused the judge to allow a prejudiced jury to be impaneled, through judicial questioning, the voir dire procedure in general, and the judge's refusal to allow defendants additional peremptory challenges. Beech also asserts that its expert witness Holshouser was erroneously prevented from expressing opinions as to the 'ultimate questions' in the case because of his employment as a National Transportation Safety Board (N.T.S.B.) investigator, while plaintiffs' expert Bullard-a Federal Aviation Administration investigator working together with the N.T.S.B. investigators-was permitted to express such opinions. ¹ Beech claims error in the admission of the hearsay declaration made to Investigator Bullard by Mr. Arne Flathaug, an eyewitness who died before trial. Finally, Beech argues that the awards of attorney's fees and prejudgment interest were improper.

Before turning to these issues, however, we wish to reaffirm our order of June 26, 1975, denying plaintiffs' request that this appeal be dismissed because it was not timely filed. The arguments presented now are substantially the same as those presented previously, and we see no real benefit from elaborating on our previous order.

I.

The first major issue concerns jury selection. Beech complains that nine of the jurors 'had some familiarity or association with the plaintiffs' decedents and their families.' This does not surprise us, given that the trial took place in the relatively small community of Kodiak. It is obvious from the transcript that there was considerable difficulty in obtaining a jury at all, because of the number or people who were excused for bias or economic hardship. Our examination of the record convinces us, however, that the composition of the jury was not a result of any misconduct on the part of the judge. He questioned each potential juror to determine impartiality, and then allowed counsel ti inquire further. The acquaintance between the deceased and their families and those who ultimately served on the jury was in all instances casual, and each juror said he or she could serve without prejudice. Our review of the record reveals that Judge Burke's conduct of the voir dire was fair and impartial, although animosity between counsel made his task particularly between counsel made find an indication of bias in Judge Burke's denial to the defendant of extra peremptory challenges. The good cause claimed by Beech does not, in this case, outweigh the discretion ² of the trial judge, and his apparent concern for orderly and reasonably expeditious trial procedure.

We further note that some of the jury selection issues were raised about fifteen days after trial began in motions for disqualification of Judge Burke and for a change of venue. ³ At that time, Beech wrote:

'the defendant, Beech Aircraft, does not in any way impune (sic) the integrity or character of the Honorable Edwin (sic) Burke or imply that he is in any way biased or prejudiced against the defendant, Beech Aircraft, in the trial of this case.'

We see no justification for Beech to have changed its mind, upon an examination of the record. The claims of error in jury selection must fail.

II.

The next major question is the treatment of the expert investigators' opinion testimony. 49 U.S.C. § 1441(e) provides 'No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.'

This statute originally applied to the Civil Aeronautics Board, but in 1966 the function of investigating aircraft crashes was transferred to the National Transportation Safety Board, and along with it the prohibition contained in 49 U.S.C. § 1441(e). See 49 U.S.C. § 1655(c) and (d), 1901 et seq.

In interpreting this statute, state courts are bound by the interpretation given by the federal judiciary. ⁴ Ratner v. Arrington,111 So.2d 82, 84-85 (Fla.App.1959); see United States v. Gilbert Associates, Inc., 345 U.S. 361, 363, 73 S.Ct. 701, 703, 97 L.Ed. 1071, 1075 (1953). In Berguido v. Eastern Air Lines, 317 F.2d 628, 632 (3rd Cir. 1963), the court said:

'the primary thrust of the provision is to exclude C.A.B. reports which express agency views as to the probable cause of the accident. Of necessity, the opinion testimony of the C.A.B.'s investigators would also come within this rule.' (Footnote omitted)

The federal courts have split on the precise extent to which Berguido requires the exclusion of an investigator's opinion. One side of the argument is represented by Fidelity & Casualty Co. v. Frank, 227 F.Supp. 948, 949 (D.Conn.1964). There the court, purporting to follow Berguido, on reconsideration adopted a distinction between 'factual' evidence, which could be admitted, and 'evaluation, opinion or conclusion evidence,' which must be excluded whether or not it relates to the 'ultimate question' in the case. ⁵ But other courts would not exclude all opinions.

'Berguido established that qualified testimony going beyond merely personal observations is admissible provided such testimony does not presume to be official agency opinion. . . . (I)t would be better to exclude opinion testimony only when it embraces the probable cause of the accident or the negligence of the defendant.' American Airlines, Inc. v. United States, 418 F.2d 180, 196 (5th Cir. 1969). ⁶

The trial court below in the case at bar adopted the 'ultimate question' test, rather than the Frank rule. Its judgment was later vindicated when, or July 17, 1975, the N.T.S.B. itself adopted this policy by allowing its investigators to testify to all opinions except those going to the 'ultimate determination of cause or probable cause determined by the Board and expressed in the Board's reports.' ⁷ In so doing, the Board expressed a belief that its new policy was consistent with federal case law, specifically with Kline v. Martin, 345 F.Supp. 31, 32 (E.D.Va.1972). ⁸ Based on federal law as it stands today, we affirm the trial judge's decision on the permissible scope of opinion testimony under § 1441(e).

Beech argues that the excluded opinion testimony of its expert metallurgist, Holshouser, did not go to the 'ultimate issue' in the case. ⁹ The testimony that elicited the ruling was:

'Q. Would you tell me as best you recall what the bottom fittings on the Kodiak accident case that you examined looked like?

A. Well, they looked like overload.'

Since the ultimate question of 'the probable cause of the accident' ¹⁰ was whether the plane wing fractured because of fatigue (causing the plane to crash) or overload (caused by the plane's crash), we conclude that this opinion was properly excluded.

On the other hand, plaintiff's expert, Bullard, was permitted to testify to his opinion as to the cause of the accident. He stated that '(f)ailure of the left wing attach points is what caused the accident.' ¹¹

Plaintiffs contend that since Bullard's opinion as to the cause of the crash did not agree with the ultimate opinion of the N.T.S.B., it is therefore admissible. As a matter of policy, we find this position unacceptable. If the purpose of 49 U.S.C. § 1441(e) is to prevent introduction of 'reports expressing agency views about matters that are within the functions of the courts and juries to decide,' ¹² then it would be anomalous to allow in only official reports supporting the opposite conclusion from that of the Board. Cf...