Curry v. Chevron, USA
| Decision Date | 31 December 1985 |
| Docket Number | No. 84-3560,84-3560 |
| Parties | 19 Fed. R. Evid. Serv. 1594 Mrs. Loretta G. Krause CURRY, As confirmed natural tutrix of the minor children, etc., Plaintiffs-Appellants, v. CHEVRON, USA, et al., Defendants, Sikorsky Aircraft, Defendant-Appellee. Wallace Michael KEMP, Plaintiff-Appellant, v. SIKORSKY AIRCRAFT, Defendant-Appellee. Effie Roy STANSBURY, Personal Representative of the Estate of Larry R. Stansbury, Plaintiff-Appellant, v. SIKORSKY AIRCRAFT, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Guste, Barnett & Shushan, New Orleans, La., Richard L. Weil, William J. Guste, III, Verne Lawyer, Des Moines, La., for plaintiffs-defendants.
Theall & Fontana, Gary E. Theall, Abbeville, La., for Stansbury.
Lloyd C. Melancon, New Orleans, La., for defendants.
Christovich & Kearney, R.K. Christovich, New Orleans, La., for Sikorsky Aircraft.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GARZA, TATE and JOHNSON, Circuit Judges.
This lawsuit arises out of the crash of a helicopter that was transporting persons to and from various oil rigs located in the Gulf of Mexico. All but two of the men on board perished in the crash. These men both testified at trial that the helicopter had made several routine stops on different platforms dropping off and taking on different passengers. The last stop was at a platform in Block 305B, Eugene Island, where the helicopter was turned off completely while it was refueled. Once refueled, the craft lifted off again, en route to another platform. According to the survivors, five to ten minutes into the flight, they heard a loud snap coming from above and towards the center of the helicopter. Almost immediately, the craft began vibrating violently to the left and right and descending into the Gulf. One of the witnesses estimated their altitude at about fifteen hundred to two thousand feet before the snapping noise occurred. In a matter of moments, the helicopter crashed into the sea, killing almost everyone on board.
The two survivors, Wallace M. Kemp ("Kemp") and Charles W. Treadway ("Treadway") filed suit in the United States District Court for the Eastern District of Louisiana. The heirs of James D. Krause ("Krause") also sued in the Eastern District. The heirs of Larry S. Stansbury ("Stansbury") filed suit in the United States District Court for the Western District of Louisiana.
The heirs of James D. Krause sued Chevron U.S.A., Inc. ("Chevron"), the owner and operator of the helicopter; Sikorsky Aircraft ("Sikorsky"), the original manufacturer of the helicopter; Chicago Helicopter Airways, the manufacturer of the helicopter; and Land & Marine Applicators, Krause's employer. Charles W. Treadway claimed damages against Chicago Helicopter Airways, Sikorsky Aircraft and his employer, Land & Marine Applicators, Inc. Michael Kemp, a Chevron employee, claimed damages against Chicago Helicopter Airways and Sikorsky.
As stated above, the heirs of Stansbury originally filed suit in the Western District of Louisiana against Chevron (Stansbury's employer) and Sikorsky. Stansbury sought relief under the Death on the High Seas Act, the Jones Act, and general maritime law. The district court granted a motion for summary judgment on behalf of Chevron on the grounds that Stansbury was not a Jones Act seaman and that the Longshoremen and Harbor Worker's Compensation Act provided Stansbury's exclusive remedy against Chevron. We affirmed this ruling in Stansbury v. Sikorsky Aircraft, 681 F.2d 948 (5th Cir.1982). Stansbury's claims against Sikorsky were transferred to the United States District Court for the Eastern District of Louisiana for consolidation with the other cases pending there. Sikorsky then moved for a partial summary judgment declaring that the Death on the High Seas Act, 46 U.S.C. Secs. 761-768 (DOHSA) provided Stansbury's exclusive remedy against Sikorsky. The district court agreed. 1
After disposition of many claims by voluntary dismissal or motions for partial summary judgment, Sikorsky remained as the only defendant in this case. The district court ordered a bifurcated trial and on July 30, 1984, the trial on the issue of liability began. The trial was also bifurcated in the sense that only the claims of the two survivors, Kemp & Treadway, were being tried to a jury under the court's diversity jurisdiction. The DOHSA claims of the decedents, Krause and Stansbury, were being tried in admiralty to the district court judge. At the close of plaintiffs' evidence, Sikorsky moved for a directed verdict as to Kemp and Treadway and for an involuntary dismissal as to Krause and Stansbury. The district court granted Sikorsky's motions and entered judgment accordingly. This appeal followed. 2
On appeal, the appellants make the following arguments: (1) that the district court erred in granting Sikorsky's motion for directed verdict and motion for involuntary dismissal, (2) that the district court erred in ruling that DOHSA was Stansbury's exclusive remedy thereby depriving him of a trial by jury and the right to supplement his DOHSA claim with claims made under state wrongful death law, (3) that the district court erred in denying plaintiffs admission of the National Transportation Safety Board ("NTSB") probable cause report into evidence, and (4) that the district court erred in failing to apply the doctrine of res ipsa loquitur to Sikorsky.
We begin our discussion by preliminarily disposing of two minor points raised on appeal but which have no effect on the disposition of this case.
During the course of the trial, counsel for Krause and Kemp attempted to have their expert witness testify that he had relied on the probable cause conclusions of the NTSB report in reaching his opinion about the cause of the crash. The report concluded that the probable cause of this crash was the failure of a main rotor blade. The district court allowed plaintiffs' expert to base his conclusions on data included in the report, but forbade his use of the report's opinions and conclusions.
Plaintiffs contend that under Fed.R.Evid. 703 3 the expert witness should have been allowed to testify that the NTSB report was one of the sources he relied on in reaching his opinion. But Congress has determined that these reports shall not be used as evidence at trial, 4 and the judicial gloss on Sec. 701(e), while allowing factual portions of the report to be admitted, forbids the use of any conclusory statements in the NTSB reports. Travelers Insurance Co. v. Riggs, 671 F.2d 810, 816 (4th Cir.1982); American Airlines, Inc. v. United States, 418 F.2d 180, 196 (5th Cir.1969).
Appellants also contend that counsel for Sikorsky "opened the door" to the admission of this report by a reference he made to it in opening argument. We disagree that this reference to the report, even if it was wrongfully made, overrides the statutory mandate against use of the report's conclusions.
Stansbury contends that the doctrine of res ipsa loquitur should be applied to Sikorsky. We disagree and affirm the district court on this ruling.
Res ipsa loquitur is a rule of circumstantial evidence used in negligence actions. Bourdeaux v. American Insurance Co., 262 La. 721, 264 So.2d 621, 628, modified on reh'g, 264 So.2d 634 (1972). In Bourdeaux, the Louisiana Supreme Court reiterated that in civil cases, the plaintiff's proof, based on either direct or circumstantial evidence, "is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not." 264 So.2d at 635 (quoting Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155 (1971)). In regard to the doctrine of res ipsa, where a plaintiff seeks to carry his burden of proof by the use of circumstantial evidence, negligence of the defendant may be inferred "because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible." 264 So.2d at 636 (italics in original). Put another way, "Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident?" Id. ().
We are hard pressed to discern how the use of res ipsa can help the plaintiffs when they are struggling even under a strict liability theory, which is much less onerous to prove, to make their case. With res ipsa, plaintiffs must prove that Sikorsky negligently manufactured the helicopter blade and that such negligence was the proximate cause of plaintiffs' injury. With strict liability, plaintiffs need only prove that the blade was dangerously defective, regardless of Sikorsky's negligence in the manufacture of the blade.
We affirm the district court's ruling on the submission of a res ipsa issue to the jury. We do not find that the district court was clearly erroneous in determining that negligence of the defendant in the manufacture of the helicopter blade was not the most plausible explanation of the accident. For example, the record indicates that five or six days before the accident, Chevron, the owner-operator of the helicopter, had replaced one of the rotor blades, which may have been done improperly. Or, as other testimony indicates, the blade could have been damaged during shipping or storage, after it was out Sikorsky's control. We note that the record contains conflicting evidence of varying weight and probativeness...
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